BHQD and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 1306
•4 May 2018
BHQD and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1306 (4 May 2018)
Division:GENERAL DIVISION
File Number: 2016/6949
Re:BHQD
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member R W Dunne
Date:4 May 2018
Place:Adelaide
The Tribunal affirms the decision under review.
........................................................................
Senior Member R W Dunne
CATCHWORDS
CITIZENSHIP – cancellation of approval for Australian citizenship by conferral – whether the applicant is not of good character – whether the decision to cancel the approval of the applicant's citizenship should be affirmed – decision under review affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21, 24 and 25
CASES
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2)
(1979) 2 ALD 643
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Zheng and Minister for Immigration and Citizenship [2011] AATA 304, (2011) 121 ALD 372
Re Bashi v Minister for Immigration and Border Protection [2016] AATA 453
Re Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Muhammad and Minister for Immigration and Border Protection [2015] AATA 861
Lobo and Department of Immigration and Citizenship [2010] AATA 583, (2010) 116 ALD 639Shi v Migration Agents Registration Authority [2008] HCA 31
SECONDARY MATERIALS
Citizenship Policy (Cth) issued 1 June 2016
REASONS FOR DECISION
Senior Member R W Dunne
4 May 2018
INTRODUCTION
The applicant in this case was born in Malistan, Ghazni Province, Afghanistan. For confidentiality reasons, his name has been replaced with the pseudonym “BHQD” in these reasons. The applicant arrived in Australia as an irregular maritime arrival on 7 March 2010 and was granted a Protection (Class XA) visa on 4 November 2010.
On 23 March 2011, the applicant proposed his family for a Global Special Humanitarian (subclass 202) (“Humanitarian”) visa which was refused on 30 September 2014.
On 16 January 2015, the applicant lodged his application for Australian citizenship by conferral and on 11 February 2015 the application was approved.
On 16 August 2016, the applicant participated in a Departmental interview for the purpose of gathering further information to confirm his claimed identity.
On 29 September 2016, the Department of Immigration and Border Protection (“the Department”) sent the applicant a notice of intention to consider cancellation of his citizenship approval (“the NOICC”). On 2 November 2016, the applicant provided a written response to the NOICC to the Department.
On 23 November 2016, a delegate of the Department found that the applicant was not of good character as he had provided inconsistent and incorrect information. The delegate subsequently decided to cancel the applicant’s approval of citizenship pursuant to paragraph 25(2)(b)(iii) of the Australian Citizenship Act 2007 (Cth) (“ the Act”).
The applicant has applied to this Tribunal for review of the delegate’s decision.
At the hearing before me, the applicant was represented by Mr Thomas Cadd of counsel, with Mr Besmellah Rezaee. Mr Rodger Prince, advocate with Ms Laura Butler (from the office of the Australian Government Solicitor) appeared on behalf of the Minister. I received into evidence the T Documents[1] and the Supplementary T Documents[2] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:
·a witness statement of the applicant dated 19 June 2017;[3]
·a statutory declaration of the applicant dated 2 May 2017;[4]and
·an undated witness statement of Mr E.[5]
[1] Exhibit R1.
[2] Exhibit R2.
[3] Exhibit A1.
[4] Exhibit A2.
[5] Exhibit A3.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether the approval for Australian Citizenship given to the applicant may be cancelled if, at the time the Minister proposes to cancel the approval, the applicant is not of good character.
LEGISLATIVE AND POLICY BACKGROUND
Under s 24 of the Act, if a person makes an application for Australian citizenship the Minister must, by writing, approve or refuse to approve the person becoming an Australian Citizen. However, under s 25 of the Act the Minister may, by writing, cancel an approval given to a person under s 24. Section 25 relevantly reads:
“Minister may cancel approval
(1)The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2)The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.’
CITIZENSHIP POLICY
The Citizenship Policy (“Policy”) was issued by the Minister on 1 June 2016. The Policy (along with the Australian Citizenship Instructions) has been adopted to guide those making decisions under the Act. In the Policy, Chapter 11 sets out the relevant requirements and policy guidelines for Australian citizenship, where good character is involved. The Policy reflects government policy and is not binding on the Tribunal. However, the Tribunal should have regard to the Policy unless there is a good reason not to do so[6] (see Re Drakeand Minister for Immigration and Multicultural and Ethnic Affairs (No 2) at [645]).
[6] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 643.
In looking at paragraph 25(2)(b)(iii) of the Act, the expression “not of good character” used there is not defined. Like the term “good character”, the Federal Court and Tribunals have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full Federal Court judgement in Irving v Minister for Immigration, Local Government and Ethnic Affairs,[7] which relevantly reads at [431]:
“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. (See: Clearihan v Registrar of Motor Vehicle Dealers (ACT) (1994) 117 FLR 455 at 459-460 per Miles CJ; Plato Films Ltd v Speidel [1961] AC 1090 at 1128-1129 per Lord Radcliffe, 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: In Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan at 461 per Miles CJ). Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”
[7] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422.
The Policy, in Chapter 11 states:
“What is good character
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.”
The Policy states that the phrase ‘enduring moral qualities’ encompasses:
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, confirming to the rules and values of Australian society.
The Policy explains that an applicant of good character would (among other things):
·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 practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
oproviding false personal information …or other material deception during visa and citizen applications…
Section 21 of the Act is the provision that entitles a person to make an application to the Minister to become an Australian citizen. In re Zheng and Minister for Immigration and Citizenship[8], Deputy President Forgie considered the language of subsection 21(2)(h) of the Act, which provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is, among other things, of “good character”. The following are some of the conclusions reached by the learned Deputy President in Zheng:
(a)an assessment of the applicant’s character is to be determined on the evidence at the date of the review, not at the time of the Minister’s decision;
(b)the burden of proof is no greater than satisfaction. The Tribunal does not need to be positively persuaded that the applicant is of good character; and
(c)the concept of good character does not refer to a person’s reputation or repute.
[8] Zheng and Minister for Immigration and Citizenship [2011] AATA 304, (2011) 121 ALD 372.
Preliminary Points
Section 25 of the Act makes it clear that an approval for citizenship may be cancelled if the decision-maker is satisfied that an applicant is not of good character. In considering the requisite level of satisfaction, the civil standard of proof, namely the balance of probabilities, applies. In applying that standard, the Tribunal is required to be “satisfied” that the applicant is not of good character (see Re Bashi v Minister for Immigration and Border Protection[9] at [5]).
[9] Re Bashi v Minister for Immigration and Border Protection [2016] AATA 453.
In considering whether the decision-maker is satisfied that an applicant is not of good character, the Policy makes it clear that this is not limited to the existence of criminal convictions. The Policy provides specific guidance on the assessment of an applicant’s general conduct, including whether the applicant has been truthful with the Australian government. The assessment requires consideration of all relevant aspects of a person’s circumstances, but may result in a lack of satisfaction as to a person’s good character because of ‘a single adverse incident if it is of sufficient weight and seriousness” (see Re Prasad v Minister for Immigration and Ethnic Affairs[10] at [7]).
[10] Re Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326.
A certificate of Australian citizenship is a legal document of considerable significance. It is one of the most fundamental and compelling identification documents a person may hold in this country, and is more important than a passport.
MATERIAL FACTS
The material facts in this case are largely not in dispute. For the most part, they have been extracted from the respondent’s statement of facts, issues and contentions (“SOFIC”). Nevertheless, I am satisfied of the material facts on the balance of probabilities.
On arrival, the applicant claimed to be a minor, born in 1994. In his Protection visa application and the Humanitarian visa application, the applicant stated that his twin brother M A was located in Quetta, Pakistan. During the 16 August 2016 departmental identity interview, the applicant advised that is brother was in Iran, having travelled there 3 years prior to the applicant’s departure to Australia.
On 31 March 2013, an irregular maritime arrival who identified as M A M (“Muhammad”), born in 1987, arrived at Christmas Island. A facial comparison between photos of Muhammad and the applicant’s brother confirmed both images were the same person. Records of the Department showed that the applicant and Muhammad lived at the same residential address in Mile End, South Australia. Yet, at the 16 August 2016 interview the applicant denied that Muhammad was his brother. Later, in his response to the NOICC the applicant admitted Muhammad was his brother and confirmed that he had lied about his brother’s age.
In his statutory declaration dated 2 May 2017, the applicant explained that he lied about his brother’s age because he was told by others that it would make it easier for him to sponsor his brother and the rest of his family to Australia. In his witness statement dated 19 June 2017, the applicant stated that he lied during the identity interview because he wanted to protect his brother, who had applied for asylum.
In relation to his family composition, the applicant consistently claimed to have seven siblings, the youngest three being named Child H, Child A1 and Child A2. In his response to the NOICC, the applicant stated that Child H, Child A1 and Child A2 were not his true siblings. He said Child A1 and Child A2 were his older sister’s children, and Child H was the son of an extended family member of the applicant.
Further, in his statutory declaration, the applicant blamed his dishonesty about his family composition on his young age, his reliance on others (including family members) telling him what to do, and saying that his family members were in desperate situations. The applicant did not declare that he had any family or relatives on the boat he arrived on in Australia. During the identity interview, the applicant was shown pictures of Child H. He stated he travelled to Australia with Child H, but only met him in Indonesia and did not know him previously. But, as already mentioned, in his response to the NOICC, the applicant had confirmed that Child H was part of his extended family.
On 11 August 2014, the applicant’s representative provided copies of his family’s Tazkiras to the Department as part of the application for the Humanitarian visa, which was proposed by the applicant. In the NOICC letter, the delegate put it to the applicant that his description of the manner in which the family obtained their Tazkiras did not align with the correct process for obtaining those documents. In his response to the NOICC, the applicant stated that his sister went to Afghanistan to get the Tazkiras for her children, Child A1 and Child A2, the applicant’s mother and his brother, M A. The applicant claimed that on the same day the extended family member went to Afghanistan to obtain the Tazkira for his son, Child H. In his statutory declaration, the applicant claimed not to know for sure what process his sister went through to get the Tazkiras in Afghanistan and has not provided any further credible explanation as to how his sister was able to obtain the Tazkiras for all the family members. Also in his statutory declaration, the applicant stated that he had never had a birth certificate, a Tazkira or an Afghan passport himself.
In his response to the NOICC, the applicant acknowledged financial transactions he made from Australia to his mother and brother, but he omitted other transactions known to the Department. In his statutory declaration, the applicant set out various financial transactions made to family members, and admitted that he had made financial transactions to his father, S M. In his witness statement, the applicant claimed that it was only after he obtained access to a statement of transactions made through the company, S Q, that he was able to remember and provide more details about his overseas financial transactions.
In considering the applicant’s remorse, it is noted that in his response to the NOICC, in his statutory declaration and in his witness statement the applicant admitted to being untruthful with, and having provided fraudulent documents to, the Department on multiple occasions.
On 2 May 2017 and 15 February 2018, the applicant provided the following character references:
(a)A letter from J A, the 2016 President of the Association of Australian Tertiary Students from Afghanistan (AATSA). The writer stated that the applicant is hardworking, reliable and dedicated to the AATSA, that he has excelled in his position as an IT officer, and has been punctual, open and generous.
(b)A letter from Dr C L, a student counsellor at the University of Adelaide. The writer first met the applicant in October 2016.
(c)A letter from Mr M K, the technical manager of eLabtronics. The writer refers to the applicant’s reliability and trustfulness in the context of him being punctual for volunteer work. The writer has known the applicant for approximately six months.
(d)A letter from Mr P T, diversity officer at West Beach surf life-saving club. The writher refers to the applicant’s citizenship application and states that the surf life-saving club supports the applicant “in his aspiration to become an Australian citizen”. The writer details the applicant’s positive contribution to the surf life-saving club’s beach safety and community engagement activities during 2011 and 2012.
(e)A letter from Mr C E, the applicant’s former chemistry teacher. The writer refers to the applicant as a conscientious student with a very positive attitude, who was respectful and sincere.
In the Department’s Decision Record, the Minister’s delegate was not satisfied that the applicant was of ‘good character’ and decided to cancel the Minister’s approval of Australian citizenship by conferral under paragraph 25(2)(b)(iii) of the Act.
EVIDENCE
Evidence of Applicant
In giving his evidence, the applicant said he left Afghanistan. His mother had told him he was born in 1994. After Afghanistan, he went to Pakistan where he had extended family. Then, he went to Indonesia and ultimately to Australia. After his application for citizenship was approved, the applicant participated in a Departmental interview on 16 August 2016. An interpreter was present at the interview, but the applicant received no assistance in or for it. He said statements were made by him, but these were based on what other people had told him to say. When asked about this brother’s age, the applicant said that he was not a twin and that his brother was five years older than he was. He said that he had no birth certificate and that he had not received any advice about what he had said in the interview or in his communications with the Department until later, when his close friend and mentor, Mr E, told him to “come clean”. As to having opportunities to correct his statements, the applicant said he had tried. He then asserted that what he had said on each occasion was a “mistake” and had been made by him because of the responsibility he had to assist members of his family and to help them in the sponsorship of the Humanitarian visa. He said he also did this by studying and working and sending money overseas to his family.
The applicant was asked about the Tazkiras that had been provided in relation to his family members. He said the Tazkiras were identity cards which enabled the holders to get passports. Tazkiras were issued in Afghanistan to family members when they went with their father or mother to get the card. When asked why it was necessary for his family to have Tazkiras, the applicant said it was to enable them to come to Australia. With the Tazkiras that have been provided to the Department, he said his sister had obtained them and sent them to the applicant which he used in his application for the Humanitarian visa.
I referred the applicant to the Tazkiras that appeared on pages 100 and 102 of the T Documents. He said that the Tazkira on page 101 was for Child A1 and the Tazkira on page 103 was for Child A2. Apparently, these two people were the children of the applicant’s sister and the applicant said that, although Child A2 was his nephew, his sister had asked him to say that Child A2 was his son. When referred to page 96 of the T Documents, which was in the name of M A, the applicant said that the person named was his brother, but that he was five or six years older than the applicant. When questioned further about the Humanitarian visa application, the applicant said that it had not been successful and he was applying for Australian citizenship himself. The applicant was then asked about various statements he had made in relation to his application for citizenship. He said he knew at the time he made them that the statements were wrong and he was sorry because they were a mistake. The applicant then clarified that he was involved in two issues. The first issue related to his family coming to Australia under a Humanitarian visa, but this was separate to the second issue of him applying for citizenship himself and the answers he gave to the questions asked of him at different departmental interviews.
In cross-examination by Mr Prince, the applicant was asked whether he thought his provision of an untruthful document was misleading. He did not answer this question. In the Departmental interview on 16 August 2016, the applicant agreed that he had said that his twin brother was in Iran. However, when showed a picture of his brother, the applicant said that he had lied to the interviewer and he was confused about whether what he had said was right or wrong. He said that if he had been truthful, he thought this would be wrong for his brother’s case. The applicant said again that he was confused and was cautioned about telling the truth. In relation to his brother coming to live at Mile End, the applicant said this happened sometimes. In relation to his family members, he first said he had seven siblings, but then he acknowledged that there were only four and of the others two were the children of his sister and the third was the son of a colleague of his brother. When asked about submitting Tazkiras about people who were not actually members of his family, the applicant agreed that this conduct was misleading. He accepted that doing so was not within the laws of Australia, and if his sister asked him to do that now he said that he would not do it. The applicant was asked why he could not tell the truth. He said he was concerned about the consequences, but when asked what these consequences were he said he was confused. The applicant was then asked about his older brother. The applicant said his older brother was now living in Melbourne and he was questioned why his brother would not be giving evidence in support of the applicant’s case.
In his reply, Mr Cadd asked the applicant whether he was depressed after the departmental interview in 2016. The applicant said that he saw a counsellor, J A from Port Augusta. He had also seen Dr C L, a counsellor at the Adelaide University. The applicant said he was confused, worried and depressed and had made a mistake, but she could not help him. When asked how he would regain trust from someone when he had told them he had made mistakes, he said he would earn their trust because he was helping his family to be more secure in their lives.
Evidence of Mr E
Mr E said that he felt he was the applicant’s mentor. He was impressed with the applicant’s ability and attitude, that he was helpful, and that he was challenging. He said the applicant had lied when he came into Australia, but he said the applicant had an excuse. He said the applicant had kept things from him, but what he had said to the Department was not a crime. In cross-examination, Mr Prince asked the witness whether the applicant had said many things about his family. The witness said he could not remember much, that the applicant had a brother and sisters but he did not know the details. The witness understood that the applicant had told lies in Australia and had made incorrect statements in documents and in relation to the Humanitarian visa. He said that the applicant could “not hedge his bets.” What he had done was an aberration and once started he must continue to front up.
CONSIDERATION
Can the approval for Australian citizenship given to the applicant be cancelled if, at the time the Minister proposes to cancel the approval, the applicant is not of good character?
As can be seen from the legislative provisions in paragraph 10 above, under s 25 of the Act the Minister may, by writing, cancel an approval for Australian citizenship given to a person under s 24, essentially if the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is not of good character. In my view, there needs to be sufficient evidence before me that, at the time the Minister proposes to cancel the approval, the applicant is not of good character. Unlike the provisions in subsection 21(2)(h) of the Act, which require that the applicant is a person of good character at the time of the Minister’s action, paragraph 25(2)(b)(iii) requires that the person is not of good character. Thus, the wording of the test in s 25 is subtly different to the wording of the test in subsection 21(2)(h).
In cancellation decisions, the Tribunal may be required to consider what the correct or preferable decision is on the day it is made because, only in that way, could it and the decision-maker be addressing the same decision. If it is said that the Tribunal could look at evidence of later events and matters and decide the issues decided by the decision-maker in the light of more limited events and matters, their decisions would be different. The Tribunal’s decision would be whether cancellation should have occurred at the time of its decision. The decision-maker’s is whether cancellation should have occurred at the time at which he or she made that decision. It could well be the case that the Tribunal and the decision-maker will make their decisions on different factual bases as the Tribunal will not be limited to the evidence before the decision-maker. By limiting the Tribunal to the same decision made by the decision-maker at the same point in time, however, a person cannot obtain an advantage by having regard paid to any steps taken to redeem him or her or to mitigate previous activities during the period of time between the original decision and the Tribunal’s review. Regard of that sort could be perceived as unfair by those whom circumstances do not favour with a similar period within which to attempt redemption or mitigation. By limiting the Tribunal to the same decision, difficult questions regarding whether any activities in the time between the original cancellation and any restoration on a different factual basis were or were not authorised would be avoided.
The issue concerning cancellation decisions was considered by Deputy President Forgie in Lobo and Department of Immigration and Citizenship [11] at [39] when she said the following:
[11] Lobo and Department of Immigration and Citizenship [2010] AATA 583 (2010) 116 ALD 639.
“39. Whether they intended to or not, the High Court has, in Shi, changed the Tribunal’s task. Rather than requiring it to address the decision that was addressed by the decision-maker making the decision under review, it has required it to address the same issues or questions provided, of course, that the legislation does not specify a contrary approach. Addressing the same issues or questions is very different from addressing the same decision for it immediately removes any temporal link and so any link to the facts as they existed at the time of the original decision. That, however, appears to be the law since Shi. In summary, and unless varied by the particular legislation conferring jurisdiction on the Tribunal, the position since Shi has been:
(1)the decision that the Tribunal must review is determined by reference to the statutory provisions conferring jurisdiction on it;
(2)the Tribunal will address the same issues or questions as those addressed by the original decision-maker;
(3)unless there is a temporal element in the legislation requiring a contrary conclusion, the Tribunal reviews a decision as at the date it conducts that review and reaches its own decision;
(4)the Tribunal may have regard to evidence on issues and matters up to the date of its decision on review; and
(5)the task of the Tribunal:
(a)is to reach a decision that is the correct or preferable decision i.e. the decision that is correct according to the law and on the evidence and, where more than one decision meets that description, the decision that is preferable having regard to the limits imposed by the legislation under which the decision is made and the facts of the case; and
(b)is not to decide whether the decision under review is itself the correct or preferable decision.”
In his closing, Mr Cadd submitted that the applicant was a young man and there were no parents to help him. He received wrong advice and he made contextual statements. He was not experienced, but he was not bad. There were family pressures placed upon him that he felt he had to comply with. Mr Cadd said that the applicant was a good character and there was fresh evidence to show that he had a new outlook and wanted to redeem what had been done or said previously in Departmental interviews and correspondence. In my view, having regard to what is said by Deputy President Forgie above and by the High Court in Shi v Migration Agents’ Registration Authority,[12] on the basis of all the evidence that is available before me it will be difficult for the applicant to redeem or mitigate what he has done or said previously in relation to his application for Australian citizenship.
[12] Shi v Migration Agents’ Registration Authority [2008] HCA 31.
In his closing, Mr Prince referred to the material in Part III of the respondent’s SOFIC and, in particular, to paragraph 11 dealing with the Policy and what is referred to as ‘good character’, and to paragraph 12 where the Policy explains what the phrase ‘enduring moral qualities’ encompasses. Mr Prince said that the applicant’s misleading conduct had taken place over a long period of time, from 2010 to 2016. And in November 2016, the Minister’s delegate found that the applicant was not of good character as he had provided inconsistent and incorrect information to the Department. Mr Prince emphasised how paragraph 13 in the respondent’s SOFIC referred to the Policy and explained that an applicant of good character would (among other things) :
·be truthful and not practice deception or fraud in their dealings with the Australian government, or other governments or organisations, for example:
oproviding false personal information … or other material deception during visa and citizenship applications …
Mr Prince referred to the veracity of the applicant’s evidence and the fact that there was not a single incident where the applicant did not refer to what he had said or did as a “mistake”. And when he described what he said or did was a mistake, he said it occurred because of the “consequences”. But, there was no occasion when he was able to explain what the consequences were? I agree with Mr Prince because I could not accept why everything the applicant said or did in relation to what he said in giving his evidence was a mistake. A majority of the things the applicant said or did in relation to his application for citizenship and the questions asked of him in Departmental interviews were not mistakes. It is clear that the applicant was simply dishonest and his answers to questions asked of him were simply lies.
The evidence the applicant gave in relation to his brother, M A, was misleading. Furthermore, the evidence he gave in relation to his father was not truthful. He consistently claimed to have seven siblings, the youngest three being named Child H, Child A1 and Child A2. However, in his response to the NOICC, the applicant admitted that Child H, Child A1 and Child A2 were not his true siblings, but that Child A1 and Child A2 were his sister’s children and Child H was the son of an extended family member of the applicant. In his statutory declaration, the applicant blamed his dishonesty about his family composition on his young age, his reliance on others telling him what to do and say, and his family members being in desperate situations. The applicant said he was committed to helping his family, either those overseas or in relation to the Humanitarian visa. This showed to me that he was prepared to put his own interests and commitments first, rather than the Australian law.
Mitigating Circumstances
In his statement of facts, issues and contentions the applicant contends that there are mitigating circumstances, including his age and remorse for his actions, which should be taken into account. In the assessment of mitigating circumstances, the Policy provides that essentially the question is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. Given the lengthy period during which the applicant’s behaviour occurred, the mitigating circumstances and the explanation provided do not, in my view, outweigh the behaviour to any degree. A person of good behaviour would not have behaved the way the applicant did and in my view the applicant’s deception does not meet Australian community standards.
The Tazkiras
Although there were Tazkiras provided in support of the Humanitarian visa application for which the applicant was the sponsor, he was questioned in relation to their authenticity. When he was referred to the Tazkiras on pages 100 and 102 of the T Documents, although he described them as family members he did not explain that they were his sister’s children. When compared with the other information, on page 107 of the T Documents which described Child A1 as the applicant’s daughter and Child A2 as his son, the information shown on the Tazkiras involved a deliberate attempt by the applicant to have the visa dishonestly issued. As I understand it, in his reply Mr Cadd argued that the Tazkiras were correct documents, but they contained incorrect facts in them. The problem is that the applicant did not make it clear whether the Tazkiras were right or wrong. Reflecting on what was said in Irving (supra) and in the Policy, it was made clear to me that the applicant lacked an enduring moral quality. Mr Cadd and Mr E both suggested that, once a person starts a lie, the person is compelled to continue. The person would find it hard to correct the lie. As there were many opportunities for the applicant to correct, if he was an honest person, I find it hard to believe that he could not do so.
Mr Prince made the point that, in analysing the period since the applicant lodged his application for Australian citizenship and participated in the Departmental interview in August 2016, more than a year had passed and the applicant still had not taken steps to correct anything of what he had said in relation to the application. In the NOICC letter sent to the applicant on 29 September 2016, particulars of the various issues and questions involving inconsistent and misleading information were provided to the applicant. The NOICC made it clear that lies had been made by the applicant over a lengthy period. However, following the Departmental interview, the applicant left and went home, but he did nothing. Having read the NOICC, he must have seen the problems he had, but he could not change his view.
The Witnesses
In relation to the witnesses for the applicant, I gained no real assistance from what they said in their statements. Apart from Mr E and J A, they really had no idea of what had occurred after the applicant applied to become an Australian citizen. In his statement, Mr E said the applicant was open and honest with him, but he had misinformed Australian government representatives about a number of matters. With due respect to Mr E, in his dealings with the Department the applicant was not honest. In giving his evidence, he said the applicant had lied when he came into Australia, but he said the applicant had an excuse. But, Mr E did not make it clear to me what the excuse was. The applicant had lied on numerous occasions and had the opportunity to correct many times, but he did not. He may not have found it easy to go back to the Department, but there is nothing to show that he tried. In her statement, J A said the applicant has been reflecting upon his action and his honesty, but in his reflection he did nothing to correct his lies.
CONCLUSION
Having regard to what I have said above, it is my opinion that the applicant’s dishonesty has existed for an unnecessarily long time. He has had the opportunity to correct it, but he has not. The applicant has failed to demonstrate that he is a person who possesses good and enduring moral qualities.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
......................[Sgd]..................................................
Administrative Assistant
Dated: 4 May 2018
Date(s) of hearing: 20 February 2018 Counsel for the Applicant: Mr T Cadd Advocate for the Applicant: Mr B Rezaee Solicitors for the Applicant: Beena Rezaee Legal & Migration Counsel for the Respondent: Mr R Prince Advocate for the Respondent: Ms L Butler Solicitors for the Respondent: Australian Government Solicitor
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