Cross-examination
55 At the commencement of the cross-examination of Mohammed Shahid, counsel for the applicant informed the Court that Mohammed Shahid was content to give evidence in English, but there might be occasions when he might be assisted by an interpreter. In the early part of the cross-examination, it was clear that Mohammed Shahid understood and could speak English to some extent. However, I formed the view that some nuances of expression appeared to be lost, causing some confusion. The hearing was then adjourned until after lunch, and an interpreter then assisted Mohammed Shahid for the balance of his evidence.
56 At times, Mohammed Shahid presented as being haughty in giving his evidence. He appeared to take exception to being cross-examined about some matters relating to his criminal history, and remonstrated when taken meticulously through many documents in the nature of immigration applications that bore his signature. On two occasions when the witness was being argumentative, I informed him of his obligation to answer questions. The witness's capacity to engage from time to time in argument with the cross-examiner informs my assessment that the witness was very much alive to the issues that were being explored in cross-examination.
57 Some of the cross-examination of Mohammed Shahid involved compound propositions, sometimes using double negatives. All questions of this type had to be interpreted before Mohammed Shahid was required to answer. At one point the interpreter stated: "The client has just said one thing I need to tell you is ask a straight question: don't ask here and there." Having said that, not all the cross-examination of Mohammed Shahid was of this character.
58 Mohammed Shahid accepted that he was in Pakistan from March 1992 until 2000, save for a period of three weeks in 1996 when he travelled to New York. It was put to Mohammed Shahid that when he left Australia for Pakistan in March 1992, Rubina Younas could not have been pregnant with the applicant, who was born in 1993 or 1994. Mohammed Shahid accepted that this was not possible. Mohammed Shahid denied that he stated that when he went to see Rubina Younas in 1992 that he did so when she was pregnant.
59 When Mohammed Shahid was taken in cross-examination to paragraph [9] of his first affidavit (see [47] above) he stated that there seemed to be a mistake, because the applicant was born in 1994, and "obviously, in 1992 this must not have been possible". Mohammed Shahid stated that he did not read his first affidavit before he signed it, and that there was no translator present. He also said that he did not understand the affidavit and that he did not have his glasses when he signed it. He said that he signed it in a lawyer's office and, "I thought that the lawyers were handling it so I thought that was enough. I didn't even know I could get an interpreter". Mohammed Shahid also denied reading his second affidavit before signing it. There was also some uncertainty in Mohammed Shahid's answers as to whether he swore or affirmed the two affidavits to be true and correct, or whether he just signed them.
60 Mohammed Shahid was referred to his plea of guilty to the offence of dishonestly influencing a Commonwealth public official. He accepted that his dishonest intent was to have the Secretary believe, wrongly, that he was the natural or biological father of 11 applicants for citizenship, including the applicant to this proceeding. Mohammed Shahid was taken to the sentencing remarks of His Honour Judge O'Connell in the County Court of Victoria. It was put to Mohammed Shahid, and I understood him to accept, that it was not submitted on his behalf at the sentencing hearing that the applicant was his non-biological child, or that he was the applicant's non-biological parent since birth. Mohammed Shahid accepted that what had been put on his behalf at the sentencing hearing was that he had assumed the obligation of assisting Mohammed Younas's children because, in effect, Mohammed Younas had died.
61 Mohammed Shahid was taken to an application for registration of Australian citizenship by descent for the applicant which Mohammed Shahid signed. Mohammed Shahid denied filling out the whole document, stating that somebody else did, probably a relative. Mohammed Shahid denied reading the document before he signed it, and denied reading the declaration that the information supplied in the document was "complete, truthful and correct in every detail", claiming that this was due to a "lack of English". Mohammed Shahid stated that he could read the document, but did not understand the meaning of a lot of the words.
62 Mohammed Shahid accepted that the name given to the applicant in the form, "Hamza Shahid", was incorrect. Mohammed Shahid stated that the address given for the applicant in the form was his parents' address, and I understood his evidence to be that the applicant lived there from time to time. As for the applicant's mother's name nominated in the form, "Shabana Shahid", Mohammed Shahid accepted that this person was his second wife whom he divorced in 1992. Mohammed Shahid accepted that the information was false, because Shabana Shahid was not the natural mother of the applicant.
63 Mohammed Shahid was taken to a copy of a birth certificate ostensibly issued by the City District Government of Lahore, Pakistan. The document stated that it was issued on 6 March 2006. Mohammed Shahid accepted that he was in Pakistan on that date. The birth certificate stated the child's name as "Hamza Shahid", and stated the date of birth as 4 October 1993. Mohammed Shahid stated that the applicant's date of birth "could be 1994", but he was not sure. Mohammed Shahid was named as the father, and Shabana Shahid was named as the mother. When it was put to Mohammed Shahid that the birth certificate was a concocted, fake document, he said, "You could say that". However, he then attempted to resile from that answer, suggesting that the document may have been authentic, but that the information in it was wrong. Mohammed Shahid denied being involved in obtaining the birth certificate, stating that his brother-in-law, namely a brother of his first wife Iffat Parveen, acquired it.
64 Mohammed Shahid was questioned about three different addresses in Pakistan that had been attributed to the applicant. Mohammed Shahid stated that the applicant lived at all three homes. I understood his evidence to be that he owned two of the three homes that were near to each other, and that his parents owned the third home that was about 12 kilometres away from the other two. The substance of Mohammed Shahid's evidence was that under the joint family system in Pakistan, each of the three homes was considered to be the applicant's home. He gave evidence of the adults within the family moving between the homes from time to time, and that he himself might stay in different homes on any given night. He also stated that his own biological children moved between the three homes.
65 Mohammed Shahid was also asked about the financial arrangements in his family up to the present day. As I have noted, in his first affidavit, Mohammed Shahid had deposed that he still sends approximately $300 every month to his family in Lahore through money exchange shops. Mohammed Shahid said that he continues to send money to his family, including to Rubina via his third wife, Mona Malik. It was put to Mohammed Shahid that he no longer provides financial support to Rubina, but he denied this.
66 Mohammed Shahid was cross-examined about a number of applications for migration to Australia that were made on behalf of members of his family. Now, Mohammed Shahid was not cross-examined about the entire history of his attempts to secure Australian visas for his family. It is worth noting that a Department of Immigration and Multicultural Affairs Minute dated 12 January 1998 was in evidence that stated that Iffat Parveen had been unsuccessfully sponsored by Mohammed Shahid in 1981, 1984 and 1992 to come to Australia. Those applications were not addressed during cross-examination. The applications that were addressed were those that occurred after the birth of the applicant. These were contained in a series of Australian government forms signed by Mohammed Shahid and members of his family.
67 The first application was dated 1 April 1996 and bore the stamp of the Australian High Commission in Islamabad with a date of 3 April 1996. Mohammed Shahid is listed in this application as the "main applicant", and he accepted that he had signed it. Now, as an Australian citizen, he had no need of a visa to enter Australia. The form itself would seem to envisage that he should have been listed as the spouse of the main applicant, Iffat Parveen - the form requires the details of a spouse to be provided even if "the spouse is your sponsor" for migration. In any event, Mohammed Shahid was listed as the main applicant, and the form must be interpreted accordingly.
68 Below the space allotted for the signatures of the applicants, the application form states that "[t]his Declaration must be signed by any other person … who has helped the applicant(s) complete this form". The space for the signature of any such person is marked "N/A". Further, in a space titled "Declaration" on the same page, a box is ticked to assert that "I declare that … I did not receive assistance in completing this form". Mohammed Shahid stated during cross-examination that he did not fill out this form, and instead a "friend" did. It is unnecessary for me to make a finding as to whether Mohammed Shahid in fact filled out this form, though the features I have pointed out suggest that he did. It is unnecessary to do so because Mohammed Shahid accepted during cross-examination that he gave the "friend" information so that he could fill in the form. Mohammed Shahid therefore accepted that the information in the form reflected the information that he volunteered in response to the relevant questions. Senior counsel for the Commonwealth took Mohammed Shahid to a part of the form that required the applicant to "[g]ive details of ALL your and/or your spouse's children under 18 years of age whether or not in your care and legal custody". In response, Mohammed Shahid listed three children: Fatima Shahid, Hina Shahid, and Awees Shahid. He explained that Fatima Shahid and Hina Shahid are his daughters with Iffat Parveen, and that Awees Shahid was his son with Shabana Shahid, who was also known as Asad. Senior counsel for the Commonwealth put to Mohammed Shahid that he did not identify any of Rubina Younas's children, including the applicant, as his children when asked to give details of all of his children under 18 years of age. Mohammed Shahid accepted that he did not give the person who prepared this application information that the applicant and his sister were his children at that time. Mohammed Shahid also accepted that, when asked to list "all [his] brothers and sisters", he had not identified Mohammed Younas.
69 The second application to which Mohammed Shahid was taken was dated 15 May 1996, and stamped by the Australian High Commission in Islamabad on 20 May 1996. Mohammed Shahid accepted that his signature appeared on this form. This time, his signature appears next to the words "Signature of spouse". Iffat Parveen is the main applicant. Mohammed Shahid stated again that he did not prepare this form, and that a neighbour had instead - the same person who filled out the previous application form. Nevertheless, he accepted that he provided information to the neighbour to complete the form.
70 Mohammed Shahid was taken to the section of the form requiring the applicant to "[g]ive details of ALL your and/or your spouse's children under 18 years of age". Again, the three names given are Fatima Shahid, Hina Shahid, and Awees Shahid. Senior counsel for the Commonwealth put to Mohammed Shahid that he had not provided the person who filled out the form information that the applicant and his sister were his children because he did not identify them as his children. Mohammed Shahid's responses were evasive, but he eventually seemed to state that whatever was written was correct, but that if he had known what the question was, he would have included Rubina Younas's children. Mohammed Shahid was taken to a section of the form calling for details of "[a]ll your spouse's children (including from previous marriages/relationships)". In this context, Mohammed Shahid is the relevant "spouse". Again, only Fatima Shahid, Hina Shahid and Awees Shahid are listed.
71 In the same application form, under the heading "Additional information", the following text appears: "I am informing you that I am expecting a new baby in the 1st week of July 1996 and I hope that baby should be included in the VISA. PLEASE NOTE & Inform." Mohammed Shahid accepted that the "new baby" being referred to was Saif. Mohammed Shahid accepted that he had provided his neighbour with information about this child. Mohammed Shahid further accepted that when Saif was born, he was included in the family visa application, as was Usman when he was born in 1997. He additionally accepted that the applicant and his sister were never included in the visa application.
72 Mohammed Shahid was also taken to a form titled "Sponsorship for migration to Australia" dated 9 August 1999. Mohammed Shahid's signature appears on this form as the signature of the sponsor. During cross-examination, Mohammed Shahid accepted that the person who filled out this form obtained the information in the form from him. In response to the first question, which asked "How many people are included in this application?", one adult is listed alongside "1+3=4" children. The numeral "1" is joined by a line to the text "BORN ON 31-7-97. (NOT FILLED IN PREVIOUS FORM 40.)". Mohammed Shahid accepted that this showed him updating the Australian government after the fourth child was born, because he wanted that child to come to Australia with him. A similar update appears later in the form, in response to a question about Mohammed Shahid's dependants. Senior counsel for the Commonwealth put to Mohammed Shahid that he did not include the applicant among his children or dependants because he did not regard the applicant as his child or dependant. Mohammed Shahid responded that he wanted to include the applicant, but that he elected not to do so because he feared that doing so would cause the application to fail, in light of the difficulties and confusion that had attended his earlier attempts to obtain a visa for Iffat Parveen.
73 Senior counsel for the Commonwealth put to Mohammed Shahid that the next relevant event after the completion of the 9 August 1999 form occurred in October 2000, when Mohammed Shahid returned to Australia and was arrested for breach of his parole conditions. Mohammed Shahid accepted these propositions. Mohammed Shahid was taken to a letter dated 24 November 2000 from an officer of the Australian High Commission Migration Office in Islamabad to Iffat Parveen, informing her that her application for a permanent entry visa to Australia had been unsuccessful.
74 Mohammed Shahid was then taken to another form titled "Sponsorship for partner migration to Australia", which was signed by him and dated 14 April 2001. Mohammed Shahid was taken to a question that asked whether he had any dependants. The form records Mohammed Shahid's dependants as his father, mother, two brothers and three sisters. Mohammed Shahid was equivocal on whether he was the source of the information in this form, though he accepted at one point that the form was translated for him before he signed it.
75 The third application to which Mohammed Shahid was taken was titled "Application for migration to Australia by a partner". Mohammed Shahid accepted that he had signed this document, and I note he had dated it 14 April 2001. In "Part J" of the form, which deals with help provided to applicants in filling out the form, it is stated that a person named "Talat Mahmood" assisted in the completion of the form. Mohammed Shahid stated that this person was a friend. The main applicant identified in the form is "Iffat Shahid" or Parveen, with Fatima Shahid, Hina Shahid, Mohammed Saif Shahid and Usama Shahid also listed as accompanying persons. The date given below Iffat Parveen's declaration is 23 April 2001, but nothing turns on this. Question 37 of the application form requested details of "[a]ll" of Iffat Parveen's children. The names provided are Fatima Shahid, Hina Shahid, Mohammed Saif Shahid and Usama Shahid. Mohammed Shahid accepted that, in response to a question asking for all of Iffat Parveen's children to be identified, only her biological children were identified. He also accepted that he may have been the source of the information reflected in that response.
76 Senior counsel for the Commonwealth then took Mohammed Shahid to a question in the same form asking for details of "ALL" of the family of the main applicant's partner - the partner being, in this case, Mohammed Shahid. Mohammed Shahid accepted that he was the source of the information reflected in the response to this question, which listed Fatima Shahid, Hina Shahid, Mohammed Saif Shahid and Usama Shahid as "[a]ll" of his children. Notably, the applicant and his sister were not included in the form as either children or dependants, nor was Asad (or Awees) Shahid, another biological child of Mohammed Shahid. Mohammed Younas was not listed among Mohammed Shahid's siblings. When it was put to him that the reason he had not included the applicant among his children was that he did not regard the applicant as his child at the time, Mohammed Shahid stated that the reason he had omitted the applicant was that, at the time, the applicant's father was alive. In response to further questions, Mohammed Shahid stated that he had promised Mohammed Younas when he was sick that he, Mohammed Shahid, would look after the applicant.
77 Mohammed Shahid accepted that in 2002, Iffat Parveen and her four biological children with Mohammed Shahid migrated to Australia.
78 Senior counsel for the Commonwealth also took Mohammed Shahid to a transcript of an interview between the applicant and officers of the Department of Home Affairs, identified on the transcript as "Ange" and "Dave", which took place on 8 September 2021. Counsel for the applicant objected to this line of questioning, on the basis of s 44 of the Evidence Act 1995 (Cth). I overruled the objection for reasons I subsequently published: see Younas v Commonwealth of Australia (Evidentiary Ruling) [2024] FCA 357. Senior counsel for the Commonwealth took Mohammed Shahid to various parts of that transcript in which the applicant told the departmental officers that Mohammed Shahid had recently told him that Mohammed Shahid was not, in fact, his biological father, but his biological uncle who had begun to look after the applicant when he was six years old because his parents had died. Mohammed Shahid did not accept that he said these things to the applicant or that, as a matter of fact, he had only begun to take care of the applicant at some point after his birth.