Administrative Appeals Tribunal Act 1975

Drake v Minister of immigration and Ethnic Affairs (1979) 2 ALD 60

Green v Daniels [1977] HCA 18; (1976) 13 ALR 1

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

1. At the conclusion of the hearing in this matter, I delivered my decision and gave oral reasons. Having received a request under section 43(2A) of the Administrative Appeals Tribunal Act 1975 for a statement in writing of my reasons, I now publish my written reasons.
2. This is an application by Mr Ghulam Zahidy seeking a review of a decision of the Respondent, the Minister for Immigration and Border Protection, to reject his application for citizenship under the Australian Citizenship Act 2007. The Minister rejected the application because he was not satisfied that Mr Zahidy met the eligibility requirement in section 21(2)(h) of the Act; namely, that the Minister be satisfied of the good character of the citizenship applicant at the time of his or her decision. At the hearing before me, Mr Cadd represented Mr Zahidy; Mr Evans, the Minister.
3. Hearing the matter afresh on the evidence before me, I must decide whether I am satisfied that Mr Zahidy is of "good character". I note that the parties agreed that I should assess Mr Zahidy's character as at the date of the hearing before me and not as at the time of the Minister's decision[1]. In my opinion, Mr Zahidy is of good character as at the time of my decision, and I further note that my decision would be no different if I had to assess Mr Zahidy's character as at the date of the Minister's decision. Given this finding I shall set aside the decision under review and substitute a decision that Mr Zahidy satisfies section 21(2)(h) of the Act.
4. I set out below the background, the essential findings of fact and the reasons for the conclusion I have just stated.

1. I accept in the main the evidence Mr Zahidy gave orally before me. I shall say something in due course about the affidavit material that was filed.
2. Mr Zahidy was born in Ghazni Province in Afghanistan in 1983. Mr Zahidy gave evidence that his village was attacked in 2000 by the Taliban. He left the village. He was married at the time and had a son. Mr Zahidy decided to leave Afghanistan altogether. He did so by entering Pakistan with the intention of travelling to Indonesia and then on to Australia. His trip took place in 2001.
3. Mr Zahidy's wife was left behind as was his son. After her husband left, Mrs Zahidy lived with her brother some 150 to 200 km away from the village where she had earlier resided.
4. Mr Zahidy spent some one to two months in Pakistan before boarding a boat for Indonesia. He used a "people-smuggling" ring to organise his trip to Indonesia. The same ring rented a house for him in Indonesia where he (and others who were planning to travel to Australia) lived for 2 to 3 months upon arrival.
5. Mr Zahidy eventually boarded an unseaworthy vessel hoping to travel to Australia. Apparently, some 42 people boarded even though the vessel had a load-capacity of only fifteen. On the tenth day into the voyage, the skipper lost his way and, to make matters worse, the steering mechanism failed. The boat was effectively adrift. Planks were broken from the vessel and used as improvised oars. On the fourteenth day, the boat reached an island where everyone disembarked. Mr Zahidy was so debilitated by the experience that he was not able to walk properly for some three days.
6. By this stage, Mr Zahidy had developed a hatred for the people-smuggling ring, and he vowed to himself that as soon as he had learned English - he spoke none at that stage - he would speak out against them. From the island he was transferred to a holding camp. There he began to learn English. In 2004, the smugglers reappeared in Indonesia and Mr Zahidy spoke to staff working for the UNHCR about their operations. He was put in contact with officials from the Australian Embassy and met with Australian authorities in a hotel. He assisted the Australian Government by covertly reporting on the smugglers and their activities for some six to seven months. His safety became endangered when the smugglers realised he was actively co-operating with police. He had to spend some years (2004 to 2007) in a secure hotel.
7. Mr Zahidy made an application for asylum while in Indonesia, but he was not recognised as a refugee by the UNHCR. He did receive, however, a humanitarian visa from Australia, which he understood was granted to him because of the co-operation he had extended to Australian authorities in reporting on the smuggling ring.
8. Mr Zahidy arrived in Australia in October 2007. He was given a temporary visa for two years. He informed his wife, who was still in Afghanistan, that he would sponsor her to join him, but he subsequently realised his visa would not allow him to sponsor either her or his son.
9. When Mrs Zahidy learned this, she told her husband that she had grown tired of waiting for him in Afghanistan. In 2009 (or thereabouts), Mr Zahidy and his wife agreed to divorce, and it was further agreed that Mr Zahidy would assume sole custody of their son. Mr Zahidy said he had pleaded with his wife to wait a couple more years but she did not agree.
10. Mr Zahidy did manage to travel back to Afghanistan in 2009. He was wary of the dangers from people smugglers who carried, he said, a photograph of him. He met his new wife on that trip and decided to marry her to provide a mother for his son and because he felt he was getting older. He spent some months in Afghanistan on that trip and married there. He returned to Australia in 2010.
11. Mr Zahidy made two further trips to Afghanistan. On each occasion he stayed for three months. The first of these two trips took place as his wife had had a miscarriage and the second took place as his wife had, by that stage, given birth to their daughter and was suffering from a blood-pressure complaint.
12. Mr Zahidy's dealings with the Department of Immigration were important in the Minister's delegate's assessment of Mr Zahidy's citizenship application. Mr Zahidy contacted a migration agent in late 2009/2010 in Auburn, New South Wales, to assist him to secure the entry into Australia of his second wife and of his nephew as well. The agent suggested to him in the course of their conversation that his wife would be likely to join him in Australia more quickly if she assumed Mr Zahidy's first wife's identity. The agent also suggested Mr Zahidy falsely declare his nephew to be his son to assist his nephew to enter Australia.
13. At the hearing before me, Mr Zahidy initially sought in his evidence to pin the entire responsibility for this course of action upon the agent. He admitted, however, in cross-examination and in re-examination by his counsel, that he knew what the agent had proposed to him was wrong, and I do not doubt that he understood that this deception was contrary to Australian law.
14. I also have no doubt that Mr Zahidy thought he would get away with the deception because the agent had indicated to him that the practice of submitting false documents was a common one in Australia. Furthermore, Mr Zahidy accepted in his evidence that he had personally arranged for the production of false "taskeras", or formal identity booklets, by liaising directly with counterfeiters in Pakistan. He actively participated, therefore, in the deception.
15. After some one to two years, however, and before the entry of his wife and nephew to Australia, Mr Zahidy gave instructions to a new migration agent to disclose the fraud to the Department. This was done, and so the Department learned of the deception from Mr Zahidy's disclosure through his new migration agent. I shall return to that matter in due course.
16. So far as his working life in Australia is concerned, Mr Zahidy found employment as a tiling apprentice within two months of his arrival in Australia, and from that time on, he no longer claimed Centrelink benefits. He started work as an apprentice in a company in New South Wales where there were 20 apprentices. Within seven months only, he had become a supervisor.
17. Mr Zahidy's more recent work, in Adelaide, has also been in the tiling trade. He now operates his own business and presently employs three people. I accept his evidence to me that he is well known as a contractor who works efficiently and that he routinely gets the job done within the quoted timeframe and often more quickly. He has trained eleven apprentices who had no prior knowledge of tiling and brought them to a professional level. Of these eleven apprentices, five were on bridging visas. I accept his evidence that he is well known in the local Afghan community. He has had no trouble with the police in Australia.

1. Mr Evans, for the respondent, made clear in his submissions that the only issue in contention before me concerned the eligibility criterion in section 21(2)(h) of the Act. Mr Evans submitted that Mr Zahidy's behaviour in seeking to sponsor his second wife (as if she were his first wife) and in seeking to sponsor his nephew (as if he were his son) was improper and unlawful. I accept that submission. Mr Evans pointed to the fraudulent taskeras that Mr Zahidy had arranged to be fabricated in Pakistan. As I have said, I accept that Mr Zahidy actively participated in the deception that he had discussed with his first migration agent.
2. Mr Evans submitted to me that the behaviour was seriously wrong. I agree with that description to the extent that Mr Zahidy's behaviour cannot be considered to be wrong in a minor way only. I accept the misbehaviour was serious and constituted a criminal offence. I do not accept that his behaviour should be equated, however, with some of the examples of serious offending referred to in the Citizenship Policy. It should not be equated with serious assault or robbery, for example.
3. Moreover, I believe I should take into account the fact that Mr Zahidy voluntarily disclosed his dishonest behaviour to the Department through his new migration agent. He was not found out and his disclosure was not, therefore, belated. He must be given some credit for that. There may well have been some degree of self-interest on Mr Zahidy's part in that he may have decided on reflection that his behaviour was too risky or even foolhardy. In that sense, his decision to disclose the truth to the Department may not have been due solely to any contrition on his part; but he disclosed the fraud of his own volition and he ought to be given credit for that in my view even if self-interest was also a major motivating factor.
4. Mr Evans submitted that I ought to apply the Citizenship Policy when deciding whether Mr Zahidy is of good character. In this regard, I think it appropriate to refer to one potential legal difficulty.

1. It has long been accepted that in the exercise of discretionary powers given by statute, the Minister may develop a policy to guide his or her decision-making (provided he or she considers each case on its merits). That principle has been held to be applicable in the case of, for example, the deportation power, a power which permits the responsible Minister to deport a person in his or her discretion. This Tribunal has often held that in the exercise of its own statutory powers of review, it ought to follow a ministerial policy governing the exercise of a statutory discretion provided the policy is lawful (and, once again, subject to due consideration of the merits of individual cases). This approach was judged appropriate forty years ago by the Federal Court in Drake v. Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60.
2. Mr Evans' suggestion, however, that Drake's case requires the Tribunal to apply Ministerial guidelines or a policy when the Tribunal applies a statutory standard (such as whether a person is of "good character") is not without doubt in my opinion.
3. I did not hear full argument on the question, and I do not believe in those circumstances I should express a final view on the question. I do believe it appropriate, however, to highlight the difficulty that occurs to me.
4. In the absence of a statutory power permitting the Minister to formulate guidelines binding on this Tribunal as to the meaning and application of the "good character" test, there is a real question in my mind as to whether the Tribunal is lawfully entitled to apply Ministerial guidelines when deciding that question. I say this because in deciding whether it is satisfied a person is of good character, the Tribunal applies a statutory standard contained in the Act itself and does not as such exercise choice as it does in the case of the exercise of a discretion. Reasonable minds might differ, of course, over the application of the statutory standard to a given set of facts, but the application of the statutory standard of "good character" does not call for the exercise of choice in the public interest. The hallmark of a Ministerial discretionary power is the choice available to the Minister to choose to act in his or her discretion one way or another given his or her estimation of where the public interest lies. In deciding whether a person is of "good character", the Minister exercises no free discretion in that matter nor does this Tribunal standing in the shoes of the Minister. If that is the correct view of the matter, it would follow that the Tribunal should not apply the Ministerial policy document in deciding whether a person is of "good character" in conformity with _Drake'_s case unless the Tribunal is directed to do so by a statutory provision.
5. That does not mean that the Minister is prevented in law from issuing guidelines to his own departmental employees to guide them in their work. In this regard, I would refer to what was said by his Honour Justice Stephen in Green v Daniels [1977] HCA 18; (1976) 13 ALR 1. In that case, the Court was concerned with the statutory functions of the Commonwealth Director-General who had to be "satisfied" that an applicant for an unemployment benefit was "unemployed" before approving the payment of the benefit to him or her. A departmental manual effectively directed the refusal of the benefits to school leavers before the commencement of the new school year. Returning to examine the question he had earlier posed concerning the proper analysis of the manual, his Honour said as follows[2]:

"In doing so, it should be remarked that the function of the Director-General under s.107 is to be distinguished from that of tribunals, such as licensing justices, which, in their exercise of discretionary powers to grant or refuse licences, may give effect to some general policy that they see as desirable so long as in doing so they do not preclude themselves from considering on its merits the exceptional case. The Director-General is not concerned, in his administration of s. 107, with the carrying out of any policy. No general discretion is conferred upon him; instead specific criteria are laid down by the Act and all that is left for him to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of these criteria refer. He must, no doubt, for the benefit of his delegates and in the interests of good and consistent administration, provide guidelines indicating what he regards as justifying such a state of satisfaction. But if, in the course of doing this, he issues instructions as to what will give rise to the requisite state of satisfaction on the part of his delegates and these are inconsistent with a proper observance of the statutory criteria he acts unlawfully; should his delegates then observe those instructions, their conclusions concerning an applicant's compliance with the criteria will be vitiated."

1. I note the first portion of this passage draws the distinction to which I have earlier referred and inferentially supports the view that the Minister's function of deciding whether he or she is satisfied the applicant is of "good character" is not a discretionary one. The second part of the passage supports the Minister's right to issue guidelines to his or her own staff and delegates to guide them in their daily work. But so far as this Tribunal is concerned, I query how guidelines can govern, as a matter of law, the independent non-policy decision the Tribunal must make on review as to whether it is satisfied a person is of "good character" for the purposes of section 21 of the Act.

1. I do not need to decide this matter finally because in my opinion the Policy does not require Mr Zahidy's application for citizenship to be rejected.
2. I do accept Mr Evans' submission that Mr Zahidy's misleading of the department some years ago counts against his application for citizenship. I think there are two countervailing factors that need to be borne in mind, however. First, over time, the impact of Mr Zahidy's dishonest behaviour on the question of whether he is of good character has declined. The behaviour in question is some years old now, and in the meantime Mr Zahidy has established himself in the Australian community as a law-abiding and hard-working self-employed man with a family. He has demonstrated attributes of good character: diligence, self-reliance, and a determination to make an effective contribution to Australian life through the employment and training of others. He has also maintained a stable domestic life. Secondly, I do bear in mind that the deception was one that was designed to assist Mr Zahidy to bring family members to Australia. I think one should bear in mind that Mr Zahidy was not seeking to bring, for example, strangers to the country in exchange for a commercial payment. In one sense, I can understand the pressure that Mr Zahidy felt to bring his second wife to Australia quickly (after the failure of his first marriage) and his desire to assist a member of his extended family to secure a better life for himself in Australia. That fact does not excuse his behaviour, of course, but it does provide a relevant context for its evaluation especially when the ongoing relevance of that behaviour some years later comes to be assessed.
3. In my opinion, as at the date of his application for citizenship, Mr Zahidy was of good character and he was of good character at the time of the hearing before me.
4. I would mention several other subsidiary matters. I weighed carefully the terms of Mr Zahidy's affidavit to the Tribunal and his oral evidence. In the affidavit filed in the Tribunal, Mr Zahidy did seek to attribute responsibility for his deception to his first migration agent without acknowledging his own role. That was wrong because, clearly enough, Mr Zahidy was an active participant in the deception. As I earlier said, I do take into account that Mr Zahidy accepted in his oral evidence to the Tribunal that he was an active participant in the deception and that he knew what he was doing was wrong. In all the circumstances, I have decided that Mr Zahidy has accepted the impropriety of his own behaviour.
5. In this connection, Mr Evans pressed me with a submission that Mr Zahidy did not disclose the full extent of his deception because he did not disclose the fact that two taskeras were in fact fabricated rather than just one. I do not think this fact is significant in the circumstances. Mr Zahidy disclosed the falsity of the applications in respect of his second wife and nephew. At that point in time, the Department was not in any danger of wrongly admitting to the country a person who did not bear the family connection Mr Zahidy claimed for him or her.
6. Finally, I note that Mr Evans submitted I should not have regard to the character references submitted by Mr Zahidy because notice was given to Mr Zahidy's legal representative requiring the referees to attend for cross-examination. This notice was ignored in the event. I accept that submission. Accordingly, I have not had regard to the references. However, Mr Zahidy's own evidence to the Tribunal, which was not the subject of cross-examination or contradictory evidence led by the Minister, indicates strongly that he has built a worthwhile life for himself in Australia and contributed effectively to the Australian community.

1. I have decided that I am satisfied in all the circumstances, both at the time of Mr Zahidy's application to the Minister and at the time of the hearing before me, that Mr Zahidy was of good character. I shall set aside the decision under review and substitute a decision that Mr Zahidy is of good character for the purposes of the Minister's further consideration of his application for citizenship. A decision will be drawn up accordingly.

1. I certify that the following paragraphs thirty eight (38) are a true copy of the reasons for the decision herein of Senior Member N A Manetta

Beena Rezaee Legal & Migration, instructing Mr Cadd

[1] Cf Shi v. Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.

[2] [1977] HCA 18; (1976) 13 ALR 1, at 9.