Beyan v Minister for Immigration and Border Protection
[2015] AATA 256
•24 April 2015
[2015] AATA 256
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5256
Re
Bebe Beyan
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 24 April 2015 Place Perth The Tribunal affirms the decision under review.
........(Sgd) CR Walsh................................................................
Senior Member CR Walsh
CATCHWORDS
CITIZENSHIP – whether Tribunal is satisfied of the identity of the Applicant – whether Applicant of “good character” – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 – s 21(2)(h) – s 24(1) -s 24(3)
Migration Act 1958 – s 107
CASES
Al Temimi v Minister for Immigration and Border Protection [2014] AARA 97
Confidential v Minister for Immigration and Citizenship [2013] AATA 144 at [34]
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Perring and Australian Postal Corp (1933) ALR 367
Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326
Tacalan v Minister for Immigration and Border Protection [2014] AATA 767
SECONDARY MATERIALS
Australian Citizenship Instructions – Chapters 5 and 10
Explanatory Memorandum, Australian Citizenship Bill 2005
REASONS FOR DECISION
Senior Member CR Walsh
24 April 2015
INTRODUCTION
The Applicant seeks a review of a decision made by a delegate of the Minister for Immigration and Border Protection (Minister), on 16 August 2013, to refuse the Applicant’s application for Australian citizenship under s 24(1) of the Australian Citizenship Act 2007 (Citizenship Act) because he was not satisfied of the Applicant’s identity for the purposes of 24(3) of the Citizenship Act and that the Applicant was of “good character” for the purposes of s 21(2)(h) of the Citizenship Act.
FACTUAL BACKGROUND & EVIDENCE
Background to the Applicant’s permanent residence
On 8 January 2007, the Department of Immigration and Multicultural Affairs (Department) received an application for a Refugee and Humanitarian (Class XB) visa (Visa Application) naming Ms Yassah Beyan as the “main applicant” (Main Applicant).
The Visa Application states that the Main Applicant was born in Monrovia, Liberia on 26 July 1978 and that her parents are Gayduo Beyan (mother - deceased) and Quaqua Sackie Beyan (father - deceased).
The “proposer” (or sponsor) of the Visa Application is stated (at Question 16 of the Visa Application) as being Mr Moriba Beyan (Moriba Beyan) who was born in Liberia on 15 March 1973, is the Main Applicant’s half-brother and was living in Mile End, South Australia, at the time of the Visa Application.
The following seven additional applicants to the Main Applicant are included on the Visa Application (in Question 3 of “Part A – Summary of people included in this application”, under the heading “Give details of all other people included in this application”):
(i)Mr Alphonso Beyan, - who is described as being born in Monrovia, Liberia, on 19 September 1980, and as the Main Applicant’s “Brother” (The Visa Application states that this applicant’s name “in own language or script” is “Meo”) (Meo Beyan)[1];
(ii)Ms Evon Beyan – who is described as being born in Monrovia, Liberia, on 1 March 1982, and as the Main Applicant’s “Sister”;
(iii)Mr Moses Beyan – who is described as being born in Monrovia, Liberia, on 22 October 1985, and as the Main Applicant’s “Brother”;
(iv)Ms Yassah Younger Beyan – who is described as being born in Monrovia, Liberia, on 10 July 1987, and as the Main Applicant’s “Sister”;
(v)Mr Bebe Beyan – who is described as being born in Monrovia, Liberia, on 12 April 1990, and as the Main Applicant’s “Brother”;
(vi)Ms Georgina Glaywulu – who is described as being born in Conakry, Guinea, on 8 March 2005, and as the Main Applicant’s “Daughter”; and
(vii)Mr Souyo Gedeh – who is described as being born in Conakry, Guinea, on 5 February 2006, and as the Main Applicant’s “Nephew”.
[1] Mr Meo Beyan was the Applicant’s representative at the hearing of this application.
Question 10 of “Part D – Family Background” of the Visa Application asks the following question of the Main Applicant:
Are any of the children included in this application not the biological children of either the main applicant or spouse?
In answer to Question 10, the Visa Application records “Bebe Beyan” (date of birth 12 April 1990) as being the “Brother in-law” of the Main Applicant, that both of “Bebe Beyan’s” “biological parents” are deceased and that “Bebe Beyan” and that the Main Applicant and/or spouse commenced “custody” of “Bebe Beyan” on was 14 September 1990 (i.e. when “Bebe Beyan” was about 5 months old).
Question 13 of the Visa Application asks the Main Applicant to provide “details of YOUR parents, brothers and sisters and non-dependent children” and to include “half, step and adopted relatives”. In an “Attachment” to Question 13, the Main Applicant records “Bebe Beyan”, born 12 April 1990, as her “Full” brother.
On 11 September 2008, the Applicant was granted a Refugee and Humanitarian (Class XB) visa (Class XB visa) under the name “Bebe Beyan”.
On 3 December 2008, the Applicant arrived in Australia.
Identity issues and Department investigation
Between December 2008 and August 2011, the Department conducted an investigation into the identity of the Applicant in response to information received by it and as a result of those inquiries considered cancelling the Applicant’s Class XB visa pursuant to s 107 of the Migration Act 1958 (Migration Act), titled “Notice of incorrect applications”. Ultimately, however, the Department decided not to cancel the Applicant’s Class XB visa and the Applicant remains in Australia on that basis: refer to paragraphs 24 to 26 below.
In late 2008 and 2009 Ms Cindy Wittenbaker, whilst employed by the Department, acted as a Senior Investigator in the “Australian Federal Police Identity Security Strike Team” (which was a team comprising people from a number of different Commonwealth government departments, including the Department, the Australian Federal Police, Customs and the Australian Crime Commission) (Identity Security Strike Team).[2]
[2] Ms Wittenbaker is presently employed by the Department in its Western Australian identity team.
Ms Wittenbaker filed and served a Statutory Declaration, dated 15 December 2014, in relation to this application which was tendered as Exhibit R4 (Ms Wittenbaker’s Declaration). Ms Wittenbaker also gave verbal evidence at the hearing.
Ms Wittenbaker’s verbal evidence before the Tribunal was that in about December 2008 she was asked by the Department to conduct an inquiry into the identity of the Applicant as a result of information which had been received by the Department concerning the Applicant.
Ms Wittenbaker explained that, as part of that inquiry, on 7 January 2009 she interviewed Moriba Beyan, the “proposer” (or sponsor) on the Visa Application, at his residence in Perth. According to Ms Wittenbaker, Ms Daphne Cuthbertson of Centrecare and another person (whose name she could not recall) also attended that interview. Ms Wittenbaker’s Declaration states that during her interview of Moriba Beyan on 7 January 2009, Moriba Beyan stated the following:
4.1 Moriba arrived in Australia on 17 September 2004.
4.2Moriba’s siblings contacted him in February 2005. This was the first time he had contact with his family since they had been forced to flee the family home in 1990.
4.3Moriba’s siblings contacted him via his mobile number. They obtained this mobile number from a ‘Sam’ who Moriba had befriended when they were both in a refugee camp in Conakry, Guinea.
4.4After being contacted by his siblings, Moriba contacted the Department of Immigration to initiate visa application processes for his siblings, and supported his siblings by renting them a house in Conakry, paying for their food and bills, and sending them a camera to allow them to provide photographs that were required as part of the visa application process.
4.5Moriba’s siblings sent him the photographs they had taken for visa applications. Moriba was not able to identify the man in the photograph that his siblings identified as a photograph of Bebe Beyan because Moriba had last seen Bebe when Bebe was less than two years old. However, Moriba believed that the man in the photograph that his siblings identified as a photograph of Bebe Beyan was Bebe.
4.6On 26 December 2008, after his siblings has been granted visa and arrived in Australia, they told Moriba that the man who had been granted a visa under the name of Bebe Beyan was not their brother Bebe, but was in fact Oman, a cousin of Moriba’s siblings Yassah and Alphanso (their mother’s older sister’s son). Oman had applied for a visa under the name of Bebe Beyan because the real Bebe was too far away for a photo to be obtained.
4.7Moriba believes that his siblings Alphanso, Mulbah and Yassah used their influence over the other family members to prevent them from telling Moriba that the man identified as Bebe Beyan was in fact not Bebe Beyan. Moriba also believes that Alfonso, (sic.), Mulbah and Yassah told the other siblings that if they told Moriba that the visa applicant who identified himself as Bebe Beyan was not in fact Bebe, they would not be able to come to Australia.
Moriba Beyan also attended the hearing and gave oral evidence. However, Moriba Beyan did not file and serve any witness statement or statutory declaration in relation to these proceedings. In his verbal evidence before the Tribunal, Moriba Beyan said that the statements made by Ms Wittenbaker in 4.1 to 4.5 above are correct but that he had no recollection of whether, what is stated by Ms Wittenbaker in 4.6 above, in fact happened. Moriba Beyan’s stated that he had no recollection of reporting anything to the Department concerning the identity of the Applicant and that he had no recollection of his interview with Ms Wittenbaker on 7 January 2009. This is despite the fact that his interview with Ms Wittenbaker was recorded by the Department and that this recording was reviewed by Ms Wittenbaker for the purpose of preparing Ms Wittenbaker’s Declaration.
Moriba Beyan refused, on privacy grounds, to consent to the recording of Ms Wittenbaker’s interview of him on 7 January 2009 being made available to the Tribunal for the purpose of this application. A recording of Ms Wittenbaker’s interview with Moriba Beyan is clearly evidence which is relevant to this application. In such circumstances, the Tribunal is entitled to draw an adverse inference against the Applicant, namely that the recording of Ms Wittenbaker’s interview of Moriba Beyan would not support Moriba Beyan’s oral evidence before the Tribunal and, it follows, the Applicant’s case: Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367 and Re Perring and Australian Postal Corp (1933) ALR 367.
Moriba Beyan’s oral evidence before the Tribunal also included the following statements:
·in about December 2008, he was experiencing some personal problems (including marriage problems, he had separated from his wife, and mental and physical health issues);
·he was first introduced to Ms Wittenbaker in late 2008 (before his “family” arrived in Australia) as a “social worker” by another social worker by the name of “Clare”;
·his understanding, at that time, was that Ms Wittenbaker was his replacement “social worker” (i.e. that she was a replacement for “Clare”) and he had no idea that Ms Wittenbaker was employed by the Department and was a member of the Identity Security Strike Team; and
·Ms Wittenbaker visited him on several occasions, including at his home and at his bedside in the hospital following an operation.
In contrast, Ms Wittenbaker’s evidence before the Tribunal was that she only recalls ever having had two encounters with Moriba Beyan, the first being the interview she conducted at his home on 7 January 2009 and the second being the telephone call she made following the interview seeking clarification from Moriba, by telephone, in relation to two of the applicants included in the Visa Application and what Moriba expected to happen to the Applicant. Ms Wittenbaker stated that when she first met Moriba Beyan she introduced herself to him as a Department employee, and not as a “replacement” social worker, and that she never visited him in hospital following an operation.
Ms Wittenbaker’s contemporaneous notes of her interview of Moriba Beyan state:
Interview conducted at the residence of Moriba BEYAN. Moriba BEYAN stated that he was unaware that the person who cam [sic] to Australia on 3 December 2008 was not his brother Bebe BEYAN. He said that he only became aware of the truth on 25 December 2008 and that was when he tried to injure himself.
Moriba was how he was able to reconnect with his family and he stated that he had received a call from one of his siblings. When asked how the family was able to obtain his phone number he said that he had given the number to a friend “Sam” who was to pass it on if any of the family tried to contact him. “Sam” gave the number to a pastor in Conakry.
Moriba said that he had sent money to the family in order to support them in a house so that they could all be together. He told the family to pay a year’s rent in advance. He said that all had been declared in his application for migration. When asked why he though [sic] his brother had been left behind, he said that he was told because the brother couldn’t give a photo. It was put to him why he thought that the person who came was his brother “Bebe” and he responded that he was told it was his brother by the family. Even though he had not seen him since he was two years old he believed them.
Moriba was asked why he thought that the family did not say anything and he said the family were told if Bebe didn’t come no one would come (nfd).
Clarification was also sought on the two children that Moriba BEYAN is the father. He stated that “Sam” contacted the mother of the children and told her their father was in Australia. Moriba thought that the children were dead when contact was made with the mother of the children, Kumar, the children were added to the application and Moriba was asked to bring the children to Australia.
Moriba was asked what he expected DIAC to do, where he stated that he wanted the imposter removed from Australia and his real brother to be replace him as he already had a visa that was being used by the imposter.
Further clarification of the situation was sought from Yasser and Alphonso. They made claims that Moriba knew that the person who came to Australia was not his brother but the cousin. When I asked how Moriba knew, both became very evasive with the answer and claimed that he ‘knew”.
It was put to them that the only reason Moriba believed that the person who was coming as Bebe, was because the family had not disclosed any information that may cause for the application to be refused. This was corroborated when during the interview information was confirmed by Alphonso and Yasser that Gaydou, one of the siblings, was pregnant and had not disclosed this fact to DIAC because everyone believed this would also cause a problem and she may have been left behind in the camp.
Moriba Beyan’s evidence concerning the content of the Visa Application was that he completed part of the Visa Application with the assistance of “Nadine”, an employee of the Department. However, as he did not have all of the necessary details of his family member (applicants) in order to complete the Visa Application he posted the Visa Application to Guinea for completion by the relevant family members (applicants). Moriba Beyan said that he relied on his family members to complete the Visa Application accurately and truthfully and that once the Visa Application had been completed by them it was posted back to him in Australia and lodged with the Department.
Moriba Beyan explained that not all of his family members were included in the Visa Application. For example, there is another family member who is also called “Bebe Beyan” but that this family member had not been included as an applicant on the Visa Application. Moriba Beyan also stated that the Applicant (who he verbally acknowledged as being present in the hearing room) was the “Bebe Beyan” that he intended be included on the Visa Application as an applicant.
On 30 April 2009, Ms Wittenbaker interviewed the Applicant. The Main Applicant and Meo Beyan accompanied the Applicant at this interview. The Department was unable to locate any recording of this interview. However, Ms Wittenbaker’s contemporaneous notes of that interview state:
At interview “Bebe BEYAN” stated the following:
· His full name is Moma Sumo Bebe BANNAH and his date of birth is 12 April 1990;
· There are two persons with the name of Bebe BEYAN.
· He had adopted the name Bebe BEYAN out of respect for his Aunt (Gayduo dec) who he had gone to live with. He stated that he had lived with everyone in the compound for a long time and considered himself one of her sons.
· Gayduo is the mother of Yasser (sic.)[i.e. the Main Applicant in the Visa Application] and Alphonso.
· He is the cousin of Yasser (sic.) [i.e. the Main Applicant in the Visa Application] and Alphonso and the rest of the family that came to Australia.
· His mother is Mary SUMO and his father is Amos BANNAH and claims they are in a refugee camp (Mamu) along with his siblings.
· Siblings are
1. Sienneh (f)
2. Joanna (f)
3. Tarnue (m)
4. Junior (m)
5. Sackie (m)
6. Daniel (m)
· The family were unable to find the “real” Bebe BEYAN and as he was known by the same name his photo was used and he attended the interviews and had the medicals.
· A definite answer as to whether Moriba BEYAN was aware of the substitution was not given Bebe claimed that he [i.e. Moriba] filled out the forms and sent them in [so] he [i.e. Moriba] should have known. I explained that Moriba had not seen Bebe since he was a small child and he relied on the family to provide him with the correct information. There was no response.
· “Bebe” has spoken to his parents since he arrived in Australia and they are aware he is in Australia.
· In regards to the real Bebe BEYAN, I was told that he does not know where he is and if he is in contact with anyone.
Decision of the Minister regarding cancellation of the Applicant’s Class XB visa
In a document titled “Record of Decision of Whether to Pursue Cancellation Under Section 109 of the Migration Act 1958”, dated 9 August 2011, a delegate of the Minister noted that the Applicant’s parents (as named by the Applicant in his interview with Ms Wittenbaker on 30 April 2009) were different to the Main Applicant’s parents as stated in the Visa Application (received on 8 January 2007), as follows:
Was the visa holder the brother of Yassah? On the application form, Yassah declared her father as Quaqua Sackie Beyan and her mother as Yassah Gbawae Beyan. The visa holder now declares that his father is Amos Bannah and his mother is Mary Sumo. The visa holder and Yassah do not have the same parents. I consider that the visa holder is not the natural brother of Yassah. I consider that the answer “brother” to question 3 was incorrect.
On this basis, the delegate of the Minister found that the Applicant had not complied with the requirement in s 101(b) of the Migration Act to provide correct answers in a visa application.
Despite this finding of non-compliance, the delegate of the Minister decided not to pursue cancellation of the Applicant’s Class XB visa for the reason that cancellation would cause the Applicant “ongoing hardship”. That is, the delegate of Minister did not consider it appropriate to cancel the Applicant’s Class XB visa and force him to return to Liberia, a country where the Applicant had no family support or experience. However, in making this finding, the delegate noted:
To avoid doubt, if there was reliable evidence that the visa holder could be removed to the support of his biological family or that he had lived in Liberia until about the time of the visa application then I would be inclined to give him a section 107 notice.
Application for citizenship
On 19 December 2012, the Department received the Applicant’s application for Australian citizenship, dated 18 December 2012, in the name of “Bebe Beyan” (Citizenship Application).
On 12 April 2013, an Australian National Police History Check indicated that on
7 September 2011 Bebe Beyan was convicted in the Fremantle Magistrates Court of one count of “Unlicensed Vehicle (Permit Use)” and fined $100.
On 5 July 2013 the Department wrote to the Applicant asking him to comment on the allegation that he had assumed a false identity while migrating to Australia. On 15 July 2013, the Department received a letter, dated 12 July 2013, from the Applicant in response to its letter of 5 July 2013 (Applicant’s Letter). The Applicant’s Letter states:
Before commenting on the details of the allegation, I wish to direct your attention to the initial investigation conducted by one of your officers who identified herself as one “Cindy”.
In that investigation which was conducted sometimes (sic.) in early February, 2009, at the old Immigration building in Perth, I was asked very many questions as anyone would expect from a usual investigation. But most importantly, Cindy asked me to comment on the issue raised by my brother, Mr Moriba Beyan that I was not the person, he, Moriba Beyan, filed in for to migrate to Australia; and allegation to which my response is abundantly clear.
There is overwhelming evidence to prove that my brother, Mr Moriba Beyan, knew about my migration to Australia instead of my other brother who bears the same name as me; a fact which my brother and sister, Alphanso and Yassah also make very clear in the investigation conducted by Cindy.
As I said in the investigation, although Moriba left the family for a significant period of time as the result of the war, we were in constant communication with him when we finally realised that he was in Australia.
On many occasions, my brother, Moriba would talk to each person via telephone. As a matter of fact, he was the primary source of financial assistance for us during our entire in Conakry, Guinea. He rented the house we were staying; he provided money for food, medicals, etc.
Additionally, when Moriba started the application process for us to migrate to Australia, including me, everyone’s photos were mailed out to him identifying ourselves.
The entire migration process for us took about two years before we could finally be granted Australian visa in Sept, 2008. Although he had left us for some times (sic.), Moriba knew everybody on that application; as he talked to us more than three times on average each week.
When we arrived in Australia, there was a big family reunion. We live (sic.) together for a while until he found a house for us to move in as it was his obligation as a proposal (sic.)/sponsor.
That said, the allegation that I assumed a false identity to migrate to Australia under a false name is a misinterpretation of the fact and simply not true. I have always been known as Bebe Beyan, one of the sons of our later father, Mr Sackie Beyan.
On 16 August 2013, a delegate of the Minister refused the Citizenship Application primarily because he was not satisfied of the identity of the Applicant for the purposes of s 24(3) of the Citizenship Act (Citizenship Decision), but also for the reason that he was not satisfied the Applicant was of “good character” for the purposes of s 21(2)(h) of the Citizenship Act.
On 15 October 2013, the Tribunal received an application for a review of the Citizenship Decision, dated 7 October 2013. The Applicant’s stated “Reasons for Application” are:
- A wrong decision was made based on a total misrepresentation of the facts
- The reasons for the denial of my citizenship as stated in the sections attached to this application are incorrect and insubstantial and hence, misrepresentation.
In his “Statement”, dated 7 January 2014 (which was tendered at the hearing as Exhibit A1) (Applicant’s Statement) the Applicant states:
1In April 2009, I was interviewed by one Cindy Wittenbaker regarding my true identity. M At the time of the interview, I was a student of the Adult Migrant English Program or the AMEP which is a government funded program at Central Institute of Technology.
2The interview, as I was told, was as the result of a complaint filed by Mr Moriba Beyan, a brother of mine.
3At the start of the interview, Cindy Wittenbaker introduced herself as an officer and said she was asked to conduct an investigation into allegation from my sponsor, Mr Moriba Beyan, that I was not quote ‘The Real Bebe Beyan’.
4Cindy Wittenbaker told me that according to information she received from my sponsor, Mr Moriba Beyan, I was not the real Bebe Beyan and that I have assumed a false identity in order to migrate to Australia.
5She also informed me that my sponsor Mr Moriba Beyan alleged that he was not aware of my coming to Australia and that he was only made aware on Dec 26 2008.
6As I said in the investigation, although Moriba left the family for a significant period of time as the result of the war, we were in constant communication with him when we finally realised that he was in Australia.
7On many occasions, my brother, Moriba would talk to each person via telephone. As a matter of fact, he was the primary source of financial assistance for us during our entire stay in Conakry, Guinea. He rented the house we were staying he provided money for food, medicals, etc.
8Additionally, when Moriba started the application process for us to migrate to Australia, including me, everyone’s photos were mailed out to him identifying ourselves.
9The entire migration process for us took about two years before we could finally be granted Australian visa in Sept, 2008. Although he had left us for some times, Moriba knew everybody on that application; as he talked to us more than three times on average each week.
10When we arrived in Australia, there was a big family reunion. We live together for a while until he found a house for us to move in as it was his obligation as a proposal/sponsor.
11That said, the allegation that I assumed a false identity to migrate to Australia under a false name is a misinterpretation of the fact and simply not true. I have always been known as Bebe Oman Mulbah Sumo Beyan, one of the sons of our late father, Mr Sackie Beyan.
12I have admitted that I am not a biological son of my late father, this is a fact that is not in contention. My biological parents are Amos Bannah and Mary sumo.
13I was adopted by my deceased parents Mr & Mrs Sackie Q. Beyan and lived with them until their passing due the civil unrest in Liberia.
14Although I was not the driver at the time, I have also stated in my correspondence dated May 28 2014 that I have a minor traffic offence recorded against me because my friend drove my unlicensed vehicle while I was on holiday in Darwin.
15Aside from this offence, I have live in Australia for over 6 years with no problem with the laws of Australia or anyone.
In a letter to the Minister’s representative, dated 17 April 2014, Meo Beyan stated that the Applicant disagrees with the Minister in in relation to the following:
·That at no point did the applicant, Bebe, ever claim to be the BIOLOGICAL brother of the main applicant, Yassah Beyan, of the Offshore Humanitarian Visa subclass XB 202 lodged on Jan 8 2007
·That the applicant, Bebe, has always maintain that he is an adapted [sic] child of the late Sackie Beyan and by reason of the operation of law and tradition, he is a brother or legal brother of the main applicant of the Offshore Humanitarian Visa subclass XB 202 lodged on Jan 8 2007, Yassah Beyan
·That the applicant, Bebe’s answer to Question 3 of form 842 (Application for an Offshore Humanitarian Visa (was very clear and ambiguous which is BROTHER and not BILOGICAL BROTHER
·That at no point during the interview conducted by [the Department] on April 30 2009 did the applicant, Bebe ever said he was not Bebe Beyan but Moma Sumo Bebe Bannah
·That at the interview conducted on April 30 2009 by [the Department], [the Department’s representative] did in fact ask the applicant, Bebe, if he was known by any other names to which the applicant, Bebe’s answer was yes
·That the other names given by the applicant during the interview conducted by [the Department] was Mulbah Sumo Bannah and not Moma Sumo Bannah
·That having the same name in the family is not usual in our tradition as evident by the number of Yassahs in the family and hence the reason other given names are used as distinguishing factor
ANALYSIS
Identity –s 24(3)
Section 24(3) of the Citizenship Act provides that the Minister must not approve an applicant becoming an Australian citizen
unless the Minister is satisfied of the identity of the person.
The Explanatory Memorandum to the Australian Citizenship Bill 2005 (which Bill was ultimately enacted as the Citizenship Act) states:
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
Chapter 5 of the Department’s Australian Citizenship Instructions (ACIs), sets out the relevant legislative requirements and policy guidelines for Australian citizenship by conferral.[3] The “Introduction” to the ACIs states (at 5.1):
An application must be refused if the decision maker is not satisfied of the person’s identity,…
[3] The Tribunal will ordinarily apply Ministerial policy in exercising its review function unless there is some cogent reason not to do so. For example, because the policy is unlawful or its application would produce an unjust decision in the circumstances of the particular case: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
Further, the ACIs state (at 5.27.1), under the heading “Minister’s decision (s24)”, that:
There are a number of circumstances where an application for citizenship by conferral must not be approved. These relate to:
· Identity
……..
Identity (s 24(3))
Section 24(3) requires that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship if they are not satisfied of the person’s identity.
Here, the Tribunal is faced with a situation where it cannot be certain of the Applicant’s identity to the standard expected for the conferral of Australian citizenship. As submitted by the Minister, 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.
There are inconsistencies in the Visa Application which are misleading and cast doubt on the identity of the Applicant. At Question 3 of the Visa Application, “Bebe Beyan” is stated as being the “Brother” of the Main Applicant. However, at Question 10 of the Visa Application “Bebe Beyan” is stated as being the “Brother-in-law” of the Main Applicant, that both of “Bebe Beyan’s” “biological” parents are deceased and that the Main Applicant’s “custody” of “Bebe Beyan” commenced on 14 September 1990. Then, in the “Attachment” to Question 13 of the Visa Application, “Bebe Beyan” is stated as being the “Full” “Brother” of the Main Applicant. Not only does this cast considerable doubt on the Applicant’s identity, but it is also inconsistent with several of the answers subsequently provided by the Applicant in his Citizenship Application.
Further, the statement at Question 10 of the Visa Application, namely that “Bebe Beyan’s” parents are both deceased, is at odds with Ms Wittenbaker’s contemporaneous notes of her interview with the Applicant on 30 April 1990 and, importantly, with Ms Wittenbaker’s Declaration. According to Ms Wittenbaker’s notes of her interview of the Applicant, during the interview the Applicant stated that: (i) his parents and 6 siblings are living in a refugee camp (Mamu); and (ii) he had phoned his parents since arriving in Australia: refer to paragraph 23 above. This is inconsistent with the statement in the Visa Application that the Applicant’s biological parents are both deceased. This casts doubt on the Applicant’s identity.
The Applicant takes issue with certain information relied upon in the interview conducted by Ms Wittenbaker. However, on the Applicant’s own evidence:
·He is not a “Full” “Brother” of the Main Applicant, but an adopted brother;
·His biological parents are not Sackie Beyan and Gayduo Beyan but, rather, Mary Sumo and Amos Bannah; and
·He has been and is known by another name of “Mulbah Sumo Bannah”. (For example, the name “Mulbah Bannah” appears in brackets, under the name “Bebe Beyan”, on the Applicant’s Facebook page, indicating that he is also known by and uses the name “Mulbah Bannah”, a copy of which was tendered as Exhibit R3).
As such, the Applicant’s own evidence raises questions about his identity.
In completing the “proposer” (or sponsor) section of the Visa Application, Moriba Beyan, identified “Bebe Beyan” as his “Brother” and the “Main Applicant” as his “Half-sister”. Moriba Beyan also identified his own parents and those of his half-sister. The biological relationship is quite clear. However, Moriba Beyan provides no such detail in identifying “Bebe Beyan” – he is referred to as his “Brother”; indicating that “Bebe Beyan” was his biological brother. This raises questions about the identity of the Applicant.
Although Moriba Beyan appeared at the hearing of this application and is now supportive of the Applicant, Ms Wittenbaker’s contemporaneous notes of her meeting with Moriba Beyan indicate that Moriba Beyan initially claimed the Applicant was an “imposter” and not his brother “Bebe Beyan”. This raises questions about the identity of the Applicant. Also, refer to the discussion in paragraph 17 above regarding Moriba Beyan’s failure to consent, on privacy grounds, to the recording of his interview with Ms Wittenbaker being made available to the Tribunal for the purposes of this review application. This is despite the fact that Moriba Beyan now claims to have no recollection whatsoever of his interview with Ms Wittenbaker concerning the identity of the Applicant. This also raises questions about the identity of the Applicant.
The Applicant also provided a Red Cross Card in support of the Visa Application. It appears from close examination of the Applicant’s Red Cross Card that he has used the Red Cross Card of the person known as “Bebe Beyan” (i.e. the other “Bebe Beyan”) and substituted his own photo. In determining whether or not to cancel the Applicant’s Class XB visa, a delegate of the Minister found:
Copies of Red Cross cards given to Yassah, the visa holder and others were given with the visa application.
Yassah’s card shows a wet stamp impression over both the card itself and the attached photo. It looks like a document of this type is expected to look. However, on the card with the visa holder’s photograph attached, the wet stamp impression appears on the card but not on the photo. This is not expected in a true document of this type. The original card appears to have been altered.
I consider it is reasonable to suspect that the Red Cross card in the name Bebe Beyan is a bogus document of the type described at paragraph 97(b) of the Act.
In his oral evidence, the Applicant did not adequately explain the reason for the absence of a wet stamp impression on his Red Cross Card. This raises questions about both the identity and the character of the Applicant.
In considering whether or not to cancel the Applicant’s Class XB visa, the delegate of the Minister also noted that it was unlikely that the Applicant was born on 12 April 1990 given that that was the same birth date as the biological brother of the Main Applicant called “Bebe Beyan”. The delegate accepted that the Applicant may be part of the adoptive family of the Main Applicant but also found:
Why the visa holder was allowed to pass himself off as Yassah’s brother and why her brother did not actually apply for the visa and travel to Australia remains a mystery but none of this happened by accident. The non-compliance was not trivial. If it was known that the visa holder was not the brother of Yassah he would not have been granted the visa he had applied for. I consider that the non-compliance was a deliberate act by the visa holder designed to circumvent the legislative requirements of the Class XB visa and to obtain a visa he was not entitled to hold.
This raises questions about the identity of the Applicant.
As stated above, in the Attachment to Question 13 of the Visa Application, the Applicant purported to be “Bebe Beyan”, born 12 April 1990, being the “Full” “Brother” of the Main Applicant. The Applicant has subsequently admitted that this information relates to another person, also called “Bebe Beyan”, and claims to have been adopted by the Main Applicant when he was about 5 months old. The Visa Application states that both of the Applicant’s biological parents are “deceased”. However, the Applicant claims to have spoken to his parents since his arrival in Australia. This raises question about the identity of the Applicant.
The Applicant has provided no documentary evidence to establish his identity, other than documents which have been obtained subsequent to the grant of his Class XB visa. This casts doubt on the identity of the Applicant.
For the above reasons, the Tribunal cannot be satisfied of the Applicant’s identity for the purposes of s 24(3) of the Citizenship Act.
Good character – s 21(2)(h)
The Minister’s position is that there is ample evidence that the Applicant should also be refused citizenship because he does not meet s 21(2)(h) of the Citizenship Act, which section provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person:
is of good character at the time of the Citizenship Decision.
The expression “good character” is not defined in the Citizenship Act and, therefore, takes its ordinary meaning: see the Full Federal Court’s decision in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 where Lee J noted at [94]:
Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; 117 FLR per Miles CJ at FLR 459-60; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128-9, Lord Denning at 1138. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character: see Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at FLR 461. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
In Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326 the Tribunal stated at [7]:
a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
Australian Citizenship Instructions
Chapter 10 of the ACIs considers what constitutes “good character” for the purposes of the Citizenship Act. Paragraph 10.1.1 of the ACIs, titled “Background”, states:
This chapter…..provides a framework for assessing an applicant under the “good character” provisions. It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are “satisfied”, on a reasoned basis, that an applicant is, or is not of good character. [Emphasis added]
Paragraph 10.1.2 of the ACIs, titled “Summary”, states:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship. [Emphasis added]
Paragraph 10.3 of the ACIs outlines what is “good character.” In particular, paragraph 10.3.1 of the ACIs, titled “Definition,” states:
In this context, “moral” does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
· characteristics which have been demonstrated over a very long period of time
· distinguishing right from wrong
· behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means 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 evidence before their visa application and throughout their migration and citizenship processes. [Emphasis added]
Paragraph 10.3.4 of the ACIs provides a non-exhaustive list, drawing from the definition discussed above, of characteristics demonstrating that an applicant is of “good character,” including:
· respect and abide by the law in Australia and other countries
· be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
· be truthful and not practice deception or fraud in their dealings with the Australian Government, or other governments and organisations
· providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications. [Emphasis added]
The evidence indicates that the Applicant falls well short of demonstrating the characteristics of “good character” as set out in paragraph 10.3.4 of the ACIs and, in particular, the characteristics identified in the last two bullet points (in paragraph 55 above).
The Applicant has not been truthful with the Department in relation to his identity both in his Visa Application and the Citizenship Application. There are numerous inconsistencies in these documents which are misleading and which raise questions about not only the identity of the Applicant (as discussed above) but also the character of the Applicant.
As detailed above, in relation to the Visa Application the Applicant did not provide correct information about his real identity and submitted a bogus Red Cross Card document. This casts doubt on the character of the Applicant.
In the Citizenship Application the Applicant:
·stated in answer to Question 2 that his name is “Bebe Beyan” and that he was born on 12 April 1990 (refer to discussion in paragraph 45 above);
·answered ‘No’ to question 3, “Have you been known by any other names?” (when, as discussed above in paragraph 41, he is also known by and uses the name “Mulbah (Sumo) Bannah”); and
·in response to Questions 24 and 25, identified his parents as “Quaqua Sackie Beyan” and ” Gayduo Beyan” (when, as discussed above in paragraphs 23 and 24, his biological parents are Mary Sumo and Amos Bannah).
These responses raise questions about the character of the Applicant.
Further, in the Citizenship Application, the Applicant answered “No” to Question 29, “Have you been convicted of, or found guilty of ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?”
In addition, in the Applicant’s Letter (refer to paragraph 29 above), the Applicant states:
I have live (sic)in Australia for about four years with absolutely no problem with anyone. No criminal record, not even a recorded traffic offence.
The above statements were made by the Applicant despite him having been convicted, on 7 September 2011, for “Unlicensed Vehicle (Permit Use)” and fined $100. This casts doubt on the character of the Applicant.
It has long been held that a failure to be truthful in dealings with migration officials can constitute evidence that a person is not of “good character”: see the frequently cited observations of DP McMahon in Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where it was stated:
The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.[4]
[4] See also Al Temimi v Minister for Immigration and Border Protection [2014] AARA 97 at [38] and Tacalan v Minister for Immigration and Border Protection [2014] AATA 767 at [16] in relation to the relevance of false statements being made in the context of a citizenship application.
Paragraph 10.5.2 of the ACIs states that one issue for consideration in deciding whether an applicant is of “good character” is whether the applicant has committed an offence and, if so, whether the offence is “serious” or “minor.” Paragraph 10.5.2 of the ACIs states that “minor offences” include:
· shoplifting
· traffic offences which have been included in a criminal records
· offences which do not lead to a conviction or a sentence
As stated above, on 7 September 2011, the Applicant was convicted in the Fremantle Magistrates’ Court of one count of “Unlicensed Vehicle (Permit Use)” and fined $100. Whilst the Applicant’s conviction is clearly one which is a “minor” offence under Chapter 10 of the ACIs, it is, as submitted by the Minister, the Applicant’s failure to disclose the offence, and indeed make a strident assertion that he had not received a traffic offence, that, together with the historical deceit of the Department and government officials (as discussed above), calls into question the Applicant’s character.
The ACIs refer to a list of factors to which consideration should be given by decision-makers. Relevantly, paragraph 10.5.2 of the ACIs requires a decision-maker to consider the quantum of offences which have been committed by the applicant and whether an offence was “one-off”, or whether it forms part of a pattern of behaviour that “shows a disregard for the law” and indicates that the applicant “may not uphold and obey the law” if citizenship is conferred on them.
The Applicant’s traffic offence is a one-off offence and, by itself, does not form part of a pattern of behaviour that “shows a disregard for the law” and indicates that he “may not uphold and obey the law” if Australian citizenship is conferred on him.
However, the Applicant’s prolonged untruthful dealings with the Department government officials are indicative of a pattern of behaviour that “shows a disregard for the law” and indicates that he “may not uphold and obey the law” if Australian citizenship is conferred on them.
Paragraph 10.6.5 of the ACIs, titled “References”, states:
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed that applicant at work and in other contexts, and who are willing to provide contact details. References should also explain how long they have known the applicant for, and the context of their relationship….
It is preferable that references are not submitted from family members.
The Applicant did not provide character references in support of the Citizenship Application but did provide his own Statement, dated 7 January 2014 (Applicant’s Statement), and a Statement from his representative, Meo Beyan, dated 1 April (Meo Beyan’s Statement), in support of this review application.
In relation to his traffic offence and “character”, the Applicant’s Statement provides:
14.Although I was not the driver at the time, I have also stated in my correspondence dated May 28 2014 that I have a minor traffic offence recorded against me because my friend drove my unlicensed vehicle while I was on holiday in Darwin.
15.Aside from this offence, I have live (sic) in Australia for over 6 years with no problem with the laws of Australia or anyone.
In relation to whether the Applicant’s “character”, Meo Beyan’s Statement provides:
20.As to the applicant, Bebe Beyan’s character, I say in no uncertain terms that the applicant is of good repute to the best of my knowledge.
21.Beyond the fact that the applicant, Bebe Beyan is my adopted brother, I am representing the applicant in this matter because I think the applicant, Bebe Beyan, is a good man.
22.The applicant has contributed and is still contributing positively to our family and even more so, the Australian Society at large.
Neither of the abovementioned statements is in the form of a Statutory Declaration. Further, neither statement is from an independent member of the community who has observed the Applicant at work and in other contexts. In such circumstances, these statements should be afforded little weight.
Paragraph 10.5.4 of the ACIs, titled “Weighing up the decision,” states:
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time to be considered ‘lasting’ or ‘enduring’ will depend on the merits of each case, but I most cases will go back prior to any visa application.[Emphasis added]
The Tribunal is not satisfied on the evidence before it that the Applicant has demonstrated enduring moral qualities evidencing “good character” over a sufficient period, commencing before the Visa Application and throughout his migration to Australia and his citizenship application process.
For the above reasons, the Tribunal is not satisfied that the Applicant is of “good character” for the purposes of s 21(2)(h) of the Citizenship Act.
DECISION
For the above reasons, the Tribunal affirms the Citizenship Decision.
I certify that the preceding 77 (seventy seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh .....(Sgd) A Tran...................................................................
Associate
Dated 24 April 2015
Dates of hearing 11 March 2015 & 16 April 2015 Representative for the Applicant Mr Meo Beyan Representative for the Respondent Mr Arran Gerrard Solicitors for the Respondent Australian Government Solicitor
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