Ahmadi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2023] AATA 1028
•5 May 2023
Ahmadi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1028 (5 May 2023)
Division:GENERAL DIVISION
File Number(s): 2022/0408
Re:Elias Ahmadi
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:5 May 2023
Place:Sydney
The decision under review is affirmed.
..................[Sgd]......................................................
Mr S Evans, Member
Catchwords
CITIZENSHIP — Application for citizenship by conferral — Eligibility — Refusal of citizenship — Whether Tribunal satisfied of Applicant’s identity — Whether Tribunal satisfied of good character — Three pillars of identity — Inconsistencies in Applicant’s life story and in documentation submitted to the Department —Applicant provided inconsistent information of family composition —Applicant failed to rectify false information provided to Minister —Tribunal not satisfied as to identity and good character of Applicant — Reviewable decision affirmed.
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Briginshaw and Briginshaw (1938) 60 CLR 336
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634Sinnathamby and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2579
Secondary Materials
CPI 15 – Assessing Good Character under the Citizenship Act
CPI 16 – Assessing Identity under the Citizenship Act
REASONS FOR DECISION
5 May 2023
Elias Ahmadi (the Applicant) is an Afghan national who applied for Australian citizenship by conferral on 16 July 2019.[1] The Australian Citizenship Act 2007 (Cth) (the Act) requires that when a person applies for Australian citizenship, the application must be refused unless the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) is satisfied of the applicant’s identity.
[1] T2/9
On 23 December 2021[2] a delegate of the Minister refused to approve the Applicant’s application as they were not satisfied of the Applicant’s identity.[3] The delegate also determined that the Applicant did not meet the good character requirements for grant of Australian citizenship.[4]
[2] T21/614
[3] T2/21
[4] T2/11
The Applicant seeks review of the delegate’s decision.[5] For the reasons that follow, I have decided to affirm the decision.
[5] T1/1
BACKGROUND
The Applicant first arrived in Australia on 23 September 2011 by boat without formal identity documents. He identified himself as Elias Ahmadi, an Afghan citizen born of that country in July 1994.[6] On 12 January 2012[7] he lodged an application for a Protection (Class XA visa) (Subclass 866) (the protection visa)[8] which was granted on 18 January 2012.[9]
[6] T2/8
[7] Respondent’s Tender Bundle (RTB)/530
[8] RTB/544
[9] T2/8
Visa cancellation and appeal
Between 16 June 2015 and 7 October 2015 the Applicant travelled to Afghanistan for a holiday, to visit family and to marry his wife. Between 8 June 2016 and 7 August 2016 the Applicant again travelled to Afghanistan. On that occasion the Applicant told Departmental officers that he had returned to Afghanistan to visit family, particularly his sister who was ill.[10]
[10] RTB/45-46
On 6 December 2017 the Applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his protection visa as he had twice returned to Afghanistan, which conflicted with his claims that it was unsafe for him to do so.[11]
[11] RTB/42
On 20 December 2017 the Applicant responded to the NOICC[12] and on 19 September 2018 the Department cancelled the Applicant’s protection visa.[13] The Applicant sought review of the decision to cancel his visa and appeared before the Migration and Refugee Division of the Tribunal on 14 March 2019 where he gave evidence in support of his application.[14] On 19 March 2019 the Tribunal set aside the decision to cancel the Applicant’s protection visa.[15]’
[12] RTB/57
[13] RTB/160
[14] RTB/262
[15] RTB 261
Citizenship application
The Applicant first applied for Australian citizenship on 19 October 2016.[16] Upon cancellation of his protection visa in September 2018 the Applicant became ineligible for grant of citizenship as he was no longer a permanent resident of Australia. Consequently, that application was refused on 19 September 2018.[17]
[16] RTB/351
[17] RTB/424
The application which is the subject of this review is the Applicant’s second application for citizenship which was lodged on 16 July 2019.[18] On 20 August 2020 the Applicant was asked by the Department to provide further information including documents in support of his identity.[19] No response was received from the Applicant and another request for information was made to the Applicant on 13 February 2021.[20] The Applicant responded by providing further documents including his marriage certificate[21] and a completed Form 80 – Personal Particulars for assessment including character assessment (the Form 80)[22] dated 26 November 2020.[23]
[18] T3/36
[19] T5/64
[20] T6/90
[21] T7/100
[22] T7/102
[23] T7/118
On 14 September 2020 the Applicant sponsored his wife and son on a partner visa.[24] On 24 August 2021 the Applicant’s spouse, three children and mother were granted Humanitarian Stay (Temporary) subclass 449 visas.[25] The Applicant’s family residing in Afghanistan arrived in Australia on 23 November 2021.
[24] RTB/336
[25] T2/9
On 22 September 2021 the Applicant was again invited comment on inconsistencies in his declarations to the Department.[26] The invitation to comment outlined in detail discrepancies which indicated he had excluded information about himself and other family members on his application for citizenship, that he had provided false information regarding his identity and that he had not declared siblings who were in Australia.[27]
[26] T10/429
[27] T10/430
On 8 December 2021 the Applicant responded to the invitation providing identification documents including his marriage certificate, residential water bill, 2021 income tax return, multiple character references and identity documents including his NSW driver’s licence, Afghan National Identity Card and his Titre De Voyage.[28]
[28] T20/507-607
He also provided a copy of a statutory declaration he made on 1 December 2021 and another dated 8 December 2021 (the December 2021 statements) in which he addressed the issues and inconsistencies set out by the Department in the September 2021 invitation to comment.[29] Further context and detail was provided by a submission from the Applicant’s representative dated 8 December 2021.[30]
[29] T20/529-532
[30] T20/509-528
The December 2021 statements
In the December 2021 statements the Applicant confirmed he had provided false information to the Department. He wrote in part:
I have provided false information to the department of Home Affairs in certain circumstances as I fled a war torn country to reach safety. When I arrived in Australia, I was a young inexperienced individual with lack of English language skills and not understand the laws and regulation. I was influenced by other people on our journey to Australia who have misled me to provide less information on other family members as it would make my case more complicated which I am extremely regretful in listening to those who have provided me misleading information and sincerely apologise to the Department.[31]
[errors in original]
[31] T20/512
The Applicant had consistently used the name Elias Ahmadi since arriving in Australia, but conceded his real name was actually Mohammad Jafar Sohrabi. By way of explanation, he wrote that he was advised to change his name by family members prior to leaving Afghanistan:
My real name is Mohammad Jafar Sohrabi before I came to Australia one of our family members told me you are going to a new country and your name is too long it’s better to choose a [simple] and short name at that time, I was young and never had any experience of other countries and I had no idea that changing a name or providing [false] information will put me in trouble.[32]
[errors in original]
[32] T20/509-510
He also wrote that his Afghan National Identity Card or tazkera was issued when he was outside of Afghanistan and was arranged by his family under the name of ‘Elias Ahmadi’. While some of the information on the tazkera is incorrect, including his name, he maintains this tazkera is an ‘original one’:
One of our villagers he was working at [tazkera] office with his help my family got an original [tazkera] from Jalriz maidan Wardak by the name of Elias the son of Mohammad Ali than I choose the surname myself (Ahmadi) and he emailed me, and I provided that [tazkera] to the department of home affairs.[33]
[errors in original]
[33] T20/516
The Applicant also addressed discrepancies raised by the Department regarding the composition of his family.
He confirmed that his father’s given name was Said Ahmad, not Mohammad Ali as he had previously claimed. The Applicant explained he continued to present his father’s name as Mohammad Ali as it was consistent with what was on his tazkera.[34]
[34] T20/515
The Applicant had provided different dates of birth for his father at various times. He explained he was uncertain as to his father’s date of birth because he was young when his father died and because depression combined with stress about his family in Afghanistan had affected his memory.[35]
[35] T20/515
The invitation to comment noted that in his first citizenship application his spouse’s partner visa application of 2020 and when he appeared before the Tribunal in March 2019, the Applicant had stated that his sister Maleka resided in Afghanistan. The invitation to comment set out evidence suggesting that Maleka had in fact been residing in Australia since October 2016 and that she and the Applicant had been living together at the same address.[36]
[36] T20/433-434
In the December 2021 statements the Applicant acknowledged he did not declare that Maleka was living in Australia and explained:
The reason I didn’t declare that Maleka is residing in Australia is because I was told to put less family member to make your case easier. When I came to Australia Maleka was in Afghanistan and when she came to Australia honestly, I thought to not make my case complicated, so I didn’t declare her on my citizen application.[37]
[errors in original]
[37] T20/513
He also confirmed that his older brother, Mohammad Raza Sohrabi, who the Applicant had maintained was missing and had declared was deceased in his citizenship application,[38] was in fact alive. He wrote in part:
Yes, Mohammad Raza Sohrabi is my real and elder brother, and he resides in Iran the reason I said that he was missing was to make my case easier for myself and to be able to bring my mother with my fiancé to Australia to live with me. I didn’t mean anything else all I did to be recognised as refugee and get an Australian permanent visa to live with my family peacefully I never thought it can get so worse.[39]
[errors in original]
[38] T3/43
[39] T20/514
The Applicant also disclosed he has a second brother – Mohammad Sohrabi – who resides in Sydney. The Applicant did not previously acknowledge his second brother as he believed doing so would make it more difficult for his mother and fiancée to immigrate to Australia.[40]
[40] T20/514
ISSUES TO BE DETERMINED
The issues to be determined by the Tribunal are:
(i)Whether the Tribunal is satisfied of the Applicant’s identity for the purposes of s 24(3) of the Act; and
(ii)whether the Applicant is of good character for the purposes of s 21(2)(h) of the Act.
LEGISLATION AND POLICY
Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 24(3) of the Act provides:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions.
The Explanatory Memorandum to the Australian Citizenship Bill 2005 (which is the Bill that became the Act) explained that:
There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.
The Department’s guidance on assessing identity is set out in CPI 16 – Assessing Identity under the Citizenship Act (CPI 16).
Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of ‘good character’ to be eligible to become an Australian citizen.
When considering the character test under section 21(2)(h), relevant policy is set out in CPI 15 - Assessing Good Character under the Citizenship Act (CPI 15).
The Tribunal is not bound by departmental policy including the CPIs, but policy will usually be applied in the absence of cogent reasons not to.[41]
[41] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ
EVIDENCE
In addition to the documentary evidence before the Tribunal, the Applicant gave oral evidence in support of his application.
The Applicant confirmed at the hearing that the name he was given by his parents was Mohammad Jafar Sohrabi. It was the Applicant’s oral evidence that during his initial journey to Australia he was advised to change his name by other asylum seekers. It was then that he decided to use the name Elias Ahmadi.[42]
[42] Transcript of proceedings dated 29 September 2022 (Transcript 1), 10-11
In giving evidence the Applicant was taken to his statutory declaration of 1 December 2021 where he stated he had changed his name on the advice of a family member prior to leaving Afghanistan.[43] When taken to his statement by his representative, the Applicant clarified that he had in fact changed his name on the advice of other asylum seekers on his way to Australia and that he chose the surname Ahmadi himself.[44] He told the Tribunal:
Actually, I think there is a bit of mistake of typing. So, to changing the name, it’s not advice of my family member. Actually, when I was on the way to Australia with other asylum [seekers], they have advised me to change your name. It’s pretty long, and you can just choose a name that makes with the names of other community members in Australia. So with the Elias, I’m pretty sure it’s kind of French name, which people using it. They have advised me if you like you can just choose this name. So, from there, I’ve just changed my name.[45]
[43] Transcript 1, 11
[45] Transcript 1, 11
In applying for citizenship on 16 July 2019, the Applicant recorded his name as Elias Ahmadi and listed his brother Mohammad Raza Ahmadi as deceased.[46] During the hearing, the Applicant explained that he meant to record that his father was deceased, not his brother. He was unable to explain how it came to be that the error had been made. In a statutory declaration made 5 November 2011, the Applicant had written he believed his brother was deceased:
… my brother started working for a foreign institution as a driver. He used to be a carrier from Kandahar to other cities…
My brother went missing 6.5 months ago, we do not know what happened to him. We went to the Police who did not help because we could not tell then who he worked for. I think my brother was taken and killed by the Taliban who cut the heads of people who work for foreign companies.[47]
[errors in original]
[46] T3/43
[47] RTB/44
When the Applicant was taken to this statement by the representative of the Minister he conceded that his brother Mohammad Raza was alive.[48] He also confirmed that his other brother, Mohammad Sohrabi, was living in Australia.[49] He also stated he had not listed his sister Maleka or his brother Mohammad as family members in his application for citizenship but that he did not know why.[50]
[48] Transcript 1, 27
[49] Transcript 1, 17
[50] Transcript 1, 44-45
The Applicant was then taken to the Form 80 dated 26 November 2020. He gave evidence that the form was completed with the help of a friend with information he had provided. [51] The Form 80 lists as family members his siblings including his brother Mohammad Raza and five of his sisters, but - consistent with his citizenship application - does not include Maleka or Mohammad.[52] Asked why they were not included he said he was not sure but conceded both were residing in Australia when completing the Form 80.[53] He denied that the omission was made because he did not want the Department to know he had family members in Australia. Rather, he indicated he wanted to be consistent with what he had previously provided the Department and did not want to complicate his case.[54]
[51] Transcript 1, 44
[52] T7/115-116
[53] Transcript 1, 45
[54] Transcript 1, 47
The Applicant’s father
In his claim for a protection visa the Applicant listed the names, residence and birthdates of his family members, including that of his late father ‘Mohammad Ali Ahmadi’.[55] The Applicant confirmed at the hearing that his father’s name was in fact Said Ahmad Sohrabi.[56] As mentioned, the Applicant concedes that until December 2021, he maintained his father’s name was Mohammad Ali Ahmadi.
[55] RTB/531
[56] Transcript 1, 16; T20/530
Since first arriving in Australia, the Applicant has given three different birth years for his father. 1944 in his first application for citizenship,[57] 1953 in the partner visa application for his wife and children,[58] and 1939 in the statutory declaration of December 2021.[59] The Applicant concedes having provided varying accounts of his father’s birth year, but insists 1939 is the actual year based on information provided by his mother.[60]
[57] RTB/356
[58] RTB/320
[59] T20/530
[60] Transcript 1, 87
The Applicant’s brothers
In November 2011 the Applicant provided details of family members in his claim for a protection visa. The Applicant provided details for five sisters and one brother, Mohammad Raza Ahmadi, who was recorded as missing.[61] The Applicant now concedes that he has another elder brother, Mohammad Sohrabi, who currently resides in Australia.[62]
[61] RTB/502
[62] Transcript 1, 16
Asked why his brother Mohammad Sohrabi was absent from the details of family members submitted to the Department in 2011, the Applicant told me that it was ‘a bit hard to say’. He claimed to have been advised while travelling to Australia that providing details of family members who could care for other family members in Afghanistan may make it more difficult for those family members to migrate to Australia. When asked if it was a conscious decision not to list his second brother he indicated that it was intentional as he believed not doing so may strengthen his family’s protection claims.[63]
[63] Transcript 1, 17-18
The Applicant confirmed during the hearing that Mohammad Raza Sohrabi had been missing between 2011 and 2012 during which he was held hostage by the Taliban. When the Applicant first arrived in Sydney he was told his brother had been released by the Taliban and had returned home. The Applicant was unable to explain the exact circumstances which led to his brother’s release. He said he did not want to dig ‘too deep’ on that question, and his brother had told him he did not want to repeat his memories of the experience as it was hard for him.[64]
[64] Transcript 1, 55-57
On 13 October 2013 the Applicant provided a statutory declaration in support of Mohammad Raza Sohrabi who had applied for a partner visa. The Applicant wrote that he had known Mr Sohrabi for 4 years, that Mr Sohrabi was his neighbour in Kabul and that Mr Sohrabi’s partner was a relative.[65] In his oral evidence the Applicant confirmed that Mohammad Raza Sohrabi was in fact his brother.
[65] RTB/550
On an incoming passenger card dated 7 October 2015 the Applicant lists ‘Mohammad’ as his emergency contact.[66] He confirmed at the hearing that Mohammad was his brother who he understood first arrived in Australia in 2014[67] and had worked for the Applicant since the ‘middle of 2014 or ‘15’[68].
[66] RTB/614
[67] Transcript 1, 37
[68] Transcript 1, 38
Money Transfers
In evidence are AUSTRAC reports listing overseas transactions made by the Applicant between 13 October 2012 and 23 August 2022.[69] The Minister contends that the Applicant has not provided an explanation for the transfers which include transactions of up to $30,000. In the December 2021 statements the Applicant explained that the recipient Sultan Ali is the son of his elder sister Zakia and Mohammad Sohrabi is his cousin. The Applicant transferred money to Sultan Ali in order to support his family.[70]
[69] T9/122-426
[70] T20/531
The Applicant confirmed that he transferred $19,452 to Termori. He gave evidence Termori could be his uncle, but he was unsure.
CONSIDERATION
Can the Tribunal be satisfied of the Applicant’s identity?
The concept of ‘identity’ is not defined in the Act, but the meanings given to it are described in CPI 16 including at 4.2 that a ‘person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context’.[71]
[71] CPI16, [4.2]
CPI 16 provides that a person’s identity will be determined by many factors, including date of birth, parentage, place and country of birth, name, siblings, schooling, marriage, children and overall history. CPI 16 identifies three pillars of identity which are to be relied upon when assessing a person’s identity: biometrics, documents and life story. Each pillar is made up of individual characteristics.[72]
Biometrics: Personal identifiers which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.
Documents: Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features. Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information
Life story: A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the other person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.
[72] CPI16, [4.4]
Paragraph 4.4. of CPI 16 provides that decision makers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision makers should consider each pillar. In having regard to information provided or obtained in relation to the three pillars, it is expected that ‘the information provided to the Department will have remained consistent over a long period of time, and no inconsistencies or concerns will have been identified’. The reliability and comprehensiveness of identity documents testify to important events in an applicant’s life story.
The Applicant contends he has now provided a true and accurate account of his identity and addressed the adverse information and inconstancies identified by the Minister. Having explained his actions and answered truthfully questions put to him by the Minister, he argues the Tribunal can be satisfied of his identity.[73]
[73] Transcript of proceedings dated 18 January 2023 (Transcript 2), 5
The Minister submits that the Tribunal cannot be certain of the Applicant’s identity as there are sufficient gaps and inconsistencies in his life story such that the prohibition under s24(3) of the Act should apply.[74]
[74] Transcript 2, 11
The Act provides that the Tribunal must be ‘satisfied’ of the Applicant’s identity. The word ‘satisfied’ is not defined in the Act but ordinarily being satisfied refers to a state of being assured or convinced of a thing.[75] The Minister refers the Tribunal to the matter of Beyan and Minister for Immigration and Border Protection (Beyan) where at [38] the Tribunal observed:
...a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.[76]
[75] Macquarie Dictionary online, Satisfy (2023)
[76] [2015] AATA 256
In Sinnathamby and Minister for Immigration and Border Protection (Citizenship) (Sinnathamby),[77] the Tribunal considered what is meant by the statutory phrase that a person is ‘satisfied’ of a requirement with reference to the principles enunciated in Briginshaw v Briginshaw (Briginshaw), where Dixon J stated:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes.
…
But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[78]
[77] [2018] AATA 2579, [55] per Senior Member DJ Morris
[78] (1938) 60 CLR 336, 361-362
The Tribunal is not bound by the rules of evidence or the test of evaluating evidence in accordance with the gravity of the consequences flowing from a particular factual finding as enunciated in Briginshaw. Nonetheless, the Tribunal has the discretion to consider and evaluate evidence using these principles as a guide. I agree with and adopt the approach of Senior Member D. J. Morris in Sinnathamby who observed at [56]:
Essentially … the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges.
The Applicant submits that having consistently used the name Elias Ahmadi since arriving in Australia it has since become an integral part of his identity. In evidence are documents including the Applicant’s tazkera, his Australian driver’s licence, home loan agreement, and local utility bills in this name. Documents including his Tazkera and Titre de Voyage include photographs of the Applicant and no concerns have been identified regarding the Applicant’s biometrics in relation to these documents.[79]
[79] Transcript 1, 97-98
CPI 16 states only reliable documents are to be used in assessing a person’s identity. In this regard the Applicant concedes that the tazkera was issued under his assumed identity and lists false names for his father and grandfather.[80] The Applicant’s marriage certificate records that his father was Mohammad Ali, who the Applicant now claims was actually Said Ahmad Sohrabi.[81] The Applicant submits that he was married in 2015 and the Afghan marriage certificate is authentic but contains incorrect information regarding his identity and that of his father.
[80] T20/546
[81] RTB/384
Other identity documents which are in evidence were issued based on the Applicant’s tazkera, rendering them of little probative value in establishing the Applicant’s identity. They do, however, support his assertion to have used the assumed identity Elias Ahmadi consistently without exception since first arriving in Australia. The Applicant was invited to provide a copy of his Afghan passport in the name Mohammad Jafari but has not done so. There are also no overseas identity documents in the name Mohammad Jafar Sohrabi in evidence.
It is submitted on the Applicant’s behalf that the name and date of birth of his father are irrelevant as to his identity. Further, it was open to him to change his name and to consistently use that name.[82] Similarly, the residential status of his siblings, money transfers and the false information on the tazkera are irrelevant to the Tribunal’s task of determining the Applicant’s identity.[83]
[82] Transcript 2, 4
[83] Transcript 2, 9-10
To my mind there is no question that in applying for citizenship using an assumed name, withholding information about his family composition and knowingly providing identity documents containing false information, the task of assessing the Applicant’s identity to the requisite standard is substantially more difficult. The information provided by the Applicant in the December 2021 statements largely seeks to address the discrepancies which have been identified by the Minister.
That said, in taking an evidence based approach to establishing the Applicant’s identity, I am also required to consider what was previously submitted by the Applicant as well as what he now contends to be true.
In considering the Applicant’s life story, I take into account that both his sister, Maleka Sohrabi and brother Mohammad Sohrabi, have provided statutory declarations dated 1 December 2021 confirming the Applicant to be their brother.[84] The Applicant maintains that Mr Sohrabi and Ms Sohrabi are his brother and sister respectively. Though they refer to the Applicant as Elias Ahmadi in their statements, the family composition they provide supports all three being siblings.
[84] T20/533-534
In cross-examination the Applicant was able to confirm most of what was submitted in the December 2021 statements and clarify some aspects of his life story. Nonetheless, some questions remain.
The Applicant’s evidence at hearing was that he had mistakenly claimed he was advised to use an alias by his family in Afghanistan when he had in fact been advised to do so by other asylum seekers. I found his evidence in this regard unconvincing. The Applicant’s claim to have mistakenly indicated that his brother was deceased in his application for citizenship - when he meant to say his father was deceased – also lacked credibility.
During cross-examination the Applicant was unable to account for some international money transfers including who the recipients were or the purpose for which the money was transferred. The Applicant is not required to account for transfers of money, but in circumstances where he had previously misrepresented his family composition, his failure to account for some transfers leaves open the very real possibility that the Applicant has not provided a complete history of his family composition or other aspects of his life story.
Based on the evidence I am satisfied that the Applicant has consistently identified himself as Elias Ahmadi whilst in Australia.
The Applicant has made submissions regarding Afghan naming conventions, including that it is not customary to use surnames and people who have contact with the West often adopt a surname.[85] I accept this may be the case. However, the Applicant now claims to have a surname, Sohrabi. It appears, based on his evidence, that he has assumed a new name without acknowledging his actual name and there is no documentary or official evidence of a name change or of links between his birth name and Elias Ahmadi. In a written submission he claims to have initially travelled to Australia on a passport in the name Mohammad Jafar,[86] This claim is supported by a record of his 2011 ‘Entry’ interview in which he reported travelling to Australia on an Afghan passport issued under the name Mohammad Jafar.[87] However, that passport has not been produced and his oral evidence was that he travelled to Australia using an Afghani passport in the name of Elias Ahmadi.[88]
[85] T20/510
[86] T20/509
[87] T2/22
[88] Transcript 1, 82
In September 2021 the Department put to the Applicant that he had a social media account in the name Mohammad Jafar Sohrabi and that he had declared a false name since his arrival in Australia. [89] In response the Applicant conceded that his real name was indeed Mohammad Jafar Sohrabi. The Minister now contends there is insufficient evidence for the Tribunal to be satisfied of the Applicant’s identity.
[89] T10/432
There is persuasive evidence to support a finding that the Applicant is, as he now claims, Mohammad Jafar Sohrabi. However, that evidence must be viewed in the context of the Applicant’s previous submissions to the Department and the inconsistencies which remain in his life story.[90] The Applicant has contributed to the uncertainty surrounding his identity through a complex and long running narrative centred around his assumed identity. In seeking to support that identity, he has selectively provided information - including false information - and in doing so inconsistencies emerged which called into question the veracity of the Applicant’s life story and actual identity.
[90] Transcript 2, 11
In addressing those inconsistencies, as he did in the December 2021 statements, the Applicant discredited and undermined other pillars of his identity, most notably the tazkera issued in his assumed name.
I am now required to make a determination as to the Applicant’s identity without the benefit of any original documents supporting his claimed identity. The evidence before me indicates that the Applicant was born Mohammad Jafar Sohrabi as he claims, and that he assumed the name Elias Ahmadi which he has used consistently as his own identity since arriving in Australia.
However, to draw this conclusion would be contrary to what the Applicant submitted prior to and including his citizenship application lodged in 2019.[91] It would be a finding made in the absence of any identity documents and scarce evidence supporting his claim to be Mohammad Jafar Sohrabi.
[91] T2/5
As the Tribunal observed in Beyan, a certificate of Australian citizenship is a legal document of considerable significance. In time the Applicant may provide further evidence to support his claim to be Mohammad Jafar Sohrabi, but currently the identity of the Applicant is not sufficiently supported for me to be satisfied of his identity for the purpose of subsection 24(3) of the Act.
Does the Applicant meet the ‘good character’ requirement?
The second issue to be considered is whether the Applicant meets the character requirement in section 21(2)(h) of the Act.
The Minister submits that the Applicant has not been sufficiently truthful or candid about his identity to demonstrate he is of good character. In particular, he has demonstrated he is prepared to provide false and misleading information to the Department in an effort to engineer and manipulate visa outcomes for both he and his family.[92]
[92] RSFIC, [79]
The Applicant concedes that he has provided false and misleading information in relation to his family composition.[93] The misleading information included that his brother was missing in Afghanistan and failing to declare that two of his siblings resided in Australia. It is submitted on his behalf that he did so ‘out of his entrenched fear of returning to Afghanistan and the fear that his mother, wife and children would be denied the opportunity to live in Australia.[94]
[93] Statement of the Applicant dated 6 May 2022
[94] T20/528
The meaning of “good character” was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J said:
Unless the terms of the Act and Regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion… 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… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.[95]
[95] (1996) 68 FCR 422, 431 – 432.
Informed by the discussion in Irving, paragraph 3.3 of CPI 15 states that:
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.[96]
[96] ST1/56
The Instructions specifically call for decision makers to ‘look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities.’[97] A person’s enduring moral qualities encompass:
- characteristics which have endured over a long period of time;
- distinguishing right from wrong; and
- behaving in an ethical manner, conforming to the rules and values of Australian society.[98]
[97] CPI 15, section 14, see ST1/70.
[98] CPI 15, section 3.3, see T23/631
CPI 15 specifically states that an application who is of good character would not ‘practice deception or fraud with the Australian government’.[99]
[99] CPI15, section 4, see T23/632
The Applicant has given evidence he is remorseful for his actions and regrets what he has done. In a statement dated 6 May 2022 he attributes his actions to his youth, his poor English language skills, being influenced by other people and a lack of understanding of the law.
The Applicant was 17 years old when he first arrived in Australia and provided a false name to the Department. It is apparent that having assumed the alias as a young man, he believed he was obliged to continue to present it when dealing with the Department so as to remain consistent. His age and the circumstances in which he made these initial misrepresentations warrants some concession.
The Minister questions the degree of the Applicant’s remorse given he did not seek to make attempts to correct the information he provided until being notified by the Department about the inconsistency in his evidence. It was only at this stage – 10 years after he first arrived in Australia – that he made attempts to correct his family composition. It is argued by the Minister that had the Applicant not have been made aware of the inconsistencies by the Department, it is likely that he would not have sought to correct this information.[100] Given the circumstances which followed the citizenship application, most notably the invitation to comment and the December 2021 statements, this argument has some merit. I agree that the Applicant had many opportunities to correct the inaccuracies over a long period of time, but chose not to do so. However, it would appear the Applicant is now motivated to provide a truthful and complete account in order to correct his previous misrepresentations and I am satisfied he genuinely regrets his actions
[100] RSFIC, [89] – [90]
The Applicant gave evidence of having been chosen by his family to make the dangerous journey to Australia on their behalf. He was 17 years old at the time and his family believed he would be more likely to survive the journey to Australia and be accepted as a refugee once he arrived. The Applicant reported the journey to Australia took him through three countries over 20 days, and prior to leaving Afghanistan he had a real and genuine fear that he may not survive the journey. Having arrived in Australia, the Applicant was under considerable pressure to assist his family members who wished to immigrate to Australia. This is the context in which his poor choices were made.
CPI 15 sets out mitigating factors which may indicate an applicant for citizenship is of good character despite adverse information. The Applicant has provided numerous character references attesting to his generosity, service to community, strong work ethic and intelligence. By any assessment, the Applicant is an exceptional individual. He has by all accounts successfully integrated into the Australian community. He is an employer with two successful businesses, he has purchased a home for his family and has sponsored his wife, mother and children who now reside in Australia.[101] As the Applicant told the Tribunal:
I know I have provided false information. And it was only to find a safe shelter for myself or my family. I have [spent] more than 10 years in Australia. I have been always working hard and contribute to the country. I’ve been tried to be always a good person, a good citizen of Australia. So I have never had any criminal record, nothing. And I have purchased businesses and my house to live our normal life as others do in Australia. So I’m just requesting, please don’t take your decision based on some false information that I provided. You can just go through 10 years of my life in Australia. How have I been? Someone like useful for this country? Or I was a person like with a very bad character or a criminal record? I’ve been always tried my hardest work at work, always.[102]
[101] Transcript 1, 98-99
[102] Transcript 1, 99
The information before the Tribunal strongly supports the Applicant’s submission that there are substantial mitigating factors which point to him being a person of good character. Nonetheless, the misrepresentations made by the Applicant are extensive and long running, and on balance they outweigh the significant mitigating considerations which weigh in favour of a finding of good character.
In my view, the current facts do not preclude a finding that the Applicant is of good character at some point in the future. However, insufficient time has passed since the Applicant most recently provided false information to the Department for me to make such a finding at this time. For these reasons, the Applicant does not satisfy paragraph 21(2)(h) of the Act.
CONCLUSION
For the reasons I have outlined above, I am not satisfied of the Applicant’s identity for the purpose of section 4(3) of the Act. Further, I am not satisfied that the Applicant is of good character for the purposes of section 21(2)(h) of the Act at this time.
DECISION
For the reasons outlined above, the decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 23 December 2021 is affirmed.
I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of
...........................[Sgd].............................................
Associate
Dated: 5 May 2023
Date(s) of hearing: 29 September 2022 and 18 January 2023 Solicitors for the Applicant: Mr. R Turner Solicitors for the Respondent: Ms K Gawidziel, AGS
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