Bongely and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 2360
•15 July 2021
Bongely and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2360 (15 July 2021)
Division:GENERAL DIVISION
File Number: 2020/1448
Re:Christian Bongely
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Dr J Henderson
Date:15 July 2021
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent to refuse the Applicant citizenship by conferral on 17 February 2020, is affirmed.
................[Sgd]........................................................
Member Dr J Henderson
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied of Applicant’s identity – three pillars of identity – inconsistencies in Applicant’s date of birth – application of Citizenship Procedural Instructions - application refused on character grounds – documents assessed as non-authentic – false or misleading declaration – character references – whether Tribunal satisfied of Applicant’s good character - decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2)(h), 24(1), 24(1A), 24(3)
CASES
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39
Confidential and Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Home Affairs v G and Another (2019) 266 FCR 569
Mohsin and Minister for Home Affairs [2019] AATA 1999
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1145
Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729
Shafari and Minister for Home Affairs [2019] AATA 808
Taradel and Minister for Immigration, Local Government and Ethnic Affairs [2005] AATA 1255
YMPL and Minister for Immigration and Border Protection [2017] AATA 1458
SECONDARY MATERIALS
Commonwealth Attorney-General’s Department, National Identity Proofing Guidelines (2016) – ch 2.1
Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019) – CPI 15, CPI 16
Department of Immigration and Border Protection, Australian Citizenship Policy (1 June 2016) – ch 13
Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Member Dr J Henderson
15 July 2021
INTRODUCTION
The decision under review (the Reviewable Decision) is a decision made by a delegate of the Respondent at the Department of Home Affairs (the Department), on 1 February 2020, to refuse the Applicant citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act), on the basis that:
(a)the Applicant did not meet the criteria set out in s 21(2)(h) of the Citizenship Act concerning good character; and
(b)the delegate was not satisfied of the Applicant’s identity, as required by s 24(3) of the Citizenship Act.
The Applicant filed an application for review of the Reviewable Decision with the Administrative Appeals Tribunal (the Tribunal) on 13 March 2020 (T1/1–6).
BACKGROUND
The Applicant was born in the Democratic Republic of Congo (DRC) and was granted a visa as dependent applicant on his father’s Temporary Partner Visa (subclass 309) application (T2/7) on 23 September 2011. The Applicant arrived in Australia on 30 December 2011 and on 19 April 2013 he was further granted a Partner (Migrant) (subclass 100) visa (the Permanent Partner Visa), again as a dependent applicant on his father’s visa application (T2/7).
Citizenship Application
On 16 March 2017, the Applicant lodged an application for Australian Citizenship by conferral, pursuant to s 21(1) of the Citizenship Act (T10/137–155) (Citizenship Application). The Applicant gave his date of birth as 20 September 1995, and his place of birth as Kinshasa, Congo (T10/137).
In support of the Citizenship Application, the Applicant provided:
(a)his Document for Travel to Australia dated 30 December 2011, showing his date of birth as 20 September 1995 (DFTTA) (T10/156);
(b)a DRC birth certificate, translated from French to English (issued on 17 October 2016 and showing an ‘effective’ date of birth of 20 September 1995) together with the original French certificate (the 2016 Birth Certificate) (T10/157–58);
(c)a current Western Australian driver’s license showing a date of birth of 20 September 1995 (T10/160).
The Applicant subsequently provided an Australian Government Health Care Card, a Commonwealth Bank card, and overseas school records.
At the time of the Citizenship Application it appears that the Applicant was 21 years old and had been living in Australia for a little over 6 years.
On 7 November 2019 the Department wrote to the Applicant, inviting him to comment on adverse information (T14/169-174) (the Adverse Information Letter). The Adverse Information Letter canvassed the Department’s concerns about the following four matters:
(a)inconsistencies between two birth certificates on record for the Applicant;
(b)school records that had been determined to be counterfeit;
(c)an inconsistent date of birth on medical records; and
(d)a counterfeit ‘Republic of South African Asylum Seeker Temporary Permit’ (T13).
On 15 January 2020 the Applicant responded to the invitation to comment (T15/178-189) (the Adverse Information Response). Relevantly, the Applicant did not challenge the information that his school records were not genuine. He indicated that his memories of his schooling were very vague, and that he had relied on a ‘family friend’ who ‘assured [the Applicant] they knew what school [the Applicant] attended”. The Applicant reported that the school had requested approximately US$83 to release the records and provided a Western Union receipt to prove that he had paid that money.
The Applicant stated that he had assumed that the records were genuine. He then said:
“I believe my main error was not paying closer attention to the document provided for my school records. If I had paid closer attention, I would have noticed myself that the documents were fraudulent and would not have submitted them. I would have instead stated that the records of my education in [the DRC] could not be found” (T15/179).
The Applicant did not, in that statement, set out the basis on which he would have noticed that the documents were fraudulent. With regards to the birth certificate dates, the Applicant stated:
“For as long as I can remember my birthdate has always been on the 20th September 1995, hence the birth certificate used by my mother for the [Permanent Partner Visa] application must have had an error typing on it that my mother and the persons processing the applications overlooked at the time of the application.” (T15/19-180).
Otherwise, the Applicant noted that the medical records and the Asylum Seeker Temporary Permit were not matters he could comment on, having been an unaware minor at the time that they were obtained (T15/180).
Following the Applicant’s Adverse Information Response, on 17 February 2020 a delegate of the Minister refused to grant the Applicant Australian Citizenship by conferral (T2/7-6).
THE ISSUES
The parties agree that there are two issues for determination:
(a)Whether the Tribunal is satisfied of the Applicant’s identity pursuant to s 24(3) of the Act; and
(b)Whether the Tribunal is satisfied that, at the time of the Reviewable Decision, the Applicant was of good character pursuant to section 21(2)(h) of the Citizenship Act.
LEGISLATIVE FRAMEWORK
Section 21(1) of the Citizenship Act provides that “[a] person may make an application to the Minister to become an Australian citizen”.
Further, s 24 of the Citizenship Act provides:
(1) If a person makes an application under section 21, the Minister must,
by writing, approve or refuse to approve the person becoming an Australian citizen. ...
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(Notes omitted.)
Identity
Section 24(3) of the Citizenship Act states that “[t]he Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person”.
As indicated by the wording of s 24(3) of the Citizenship Act, there is no discretion available to either the Minister, or any other decision-maker, to grant citizenship unless that decision-maker is satisfied of the identity of the applicant. In the absence of that satisfaction, the application must be refused.
“Identity” is not defined in the Citizenship Act. It is addressed in the Australian Citizenship Policy (the Policy) in chapter 13, by reference to the description in the Attorney-General’s Department’s National Identity Proofing Guidelines (2016) (the Guidelines).
The Tribunal will look to and apply Ministerial policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634, 645) (Re Drake).
On 1 January 2019, the Department of Home Affairs published the Revised Citizenship Procedural Instructions (CPIs), including “CPI 16 – Assessing Identity under the Citizenship Act” (CPI 16).
CPI 16 provides at [4.12]:
It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically.
CPI 16 identifies three pillars of identity to be used when assessing identity, being biometrics, documents and life story, at [4.4]:
When assessing a person’s identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics. ...
Three pillars of identity Individual characteristics 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 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.
CPI 16 at [4.4] further states that relying on a single pillar to establish a person’s identity is inadequate and that to comprehensively test and evaluate a person’s identity claim, a decision maker should consider each pillar of identity.
Whilst the Guidelines and CPIs assist the Tribunal in considering whether it is satisfied of an applicant’s identity, they are not binding on the Tribunal to the extent that they are inconsistent with or modify the meaning of the words used in the Citizenship Act. It is the task of the decision-maker to determine the meaning of the word ‘identity’ by reference to the usual principles of statutory interpretation; the grammatical meaning of the provision, the context of the words, the consequences of a literal or grammatical construction, the purpose of the statute, and the canons of construction (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 384). An Act of Parliament cannot be amended by the author of a policy document.
The Oxford English Dictionary Online relevantly defines “identity” as follows:
(a)The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality ...
(b)Who or what a person or thing is; a distinct impression of a single person or thing presented to or perceived by others; a set of characteristics or a description that distinguishes a person or thing from others.
In Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162 at 175 [117] (Dhayakpa) the Deputy President said:
Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.
Each case concerning identity must be dealt with on its individual merits, and appropriate weight must be given to individual factors (Mohsin and Minister for Home Affairs [2019] AATA 1999, [40]–[41]). The process of a decision-maker being satisfied of identity is an evaluative one, and is not “amenable to the application of an evidentiary burden of proof, such as the balance of probabilities” (BOY19 v Minister for Immigration and Border Protection(2019) 165 ALD 39 [54] (BOY19)). Rather, the Tribunal must reach an affirmative belief as to an applicant’s identity (Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1145, [16]).
Good character
Section 21(2)(h) provides that:
(2) a person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
The term “good character” is not defined in the Act. The Tribunal is guided by the numerous Federal Court decisions on the meaning of the term and the application of the ‘good character’ test. The starting point is encapsulated by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432:
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.
In other words, “good character” is not a reputational test, but an objective assessment. It is not easy to be satisfied on limited evidence of a person’s enduring moral qualities. It requires ‘consideration of an aggregate of qualities’, but a single adverse incident of ‘sufficient weight and seriousness’ can outweigh many good qualities (Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7]).
Guidance is provided to decision-makers by the Policy and the CPIs although neither is a legislative instrument or made pursuant to a statute; they are made in the exercise of executive power (Minister for Home Affairs v G and Another (2019) 266 FCR 569).
Pursuant to the principle in Re Drake, the Tribunal will apply the CP and CPI unless there is a cogent reason not to do so (Re Drake at 645, per Brennan J).
Citizenship Procedural Instruction 15 – “Assessing character under the Citizenship Act” (CPI 15) identifies the legal requirements and related policy and procedures that apply to the assessment of an application for Australian citizenship under the Citizenship Act.
CPI 15 indicates, relevantly:
“An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:…
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or
oother material deception during visa and citizenship applications;
...
CPI 15 also contains guidance as to how these principles are sensibly applied in particular circumstances:
“Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.”
In Taradel and Minister for Immigration, Local Government and Ethnic Affairs the Tribunal observed:
Dishonesty in dealings with the department is a very serious matter... [because] the integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history...When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly...([2005] AATA 1255 at [23])
Dishonesty in dealings is not limited to outright lies. It includes providing documentation that the Applicant:
‘knew or ought to have known is unlikely to be of any probative value, without providing the necessary explanation and qualification that would enable the Department appreciate the limited value of the evidence’: Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [73]..
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on 5 May 2021. The Applicant was represented by Ms A Graziotti from Estrin Saul Lawyers. The Respondent was represented by
Ms A Ladhams from the Australian Government Solicitor.
The Tribunal admitted the following documents into evidence:
(c)Applicant’s Statement of Facts, Issues and Contentions, filed 18 August 2020 attaching the ‘Applicant’s Bundle of Evidence’ (Exhibit A1);
(d)Section 37 T-Documents (T1–T16), consisting of pages 1–193 (Exhibit R1); and
(e)Supplementary section 37 T-Documents (ST1–ST6), consisting of pages 194–270. (Exhibit R2).
CONSIDERATION
The Applicant’s family history
The history of the Applicant’s family is a complex one. The Applicant’s father, Mr Innocent Is’Asanga Bongely (Applicant’s Father) was born on 29 June 1966 in Mbandaka (in what was then the Republic of Congo) (ST6/219). The Applicant’s mother, Ms Virginie Gesse Esengo (Applicant’s Mother) was born on 16 December 1974 in Kinshasa (also then known as in the Republic of Congo) (ST6/244).
The Applicant’s Mother had a relationship with Mr Claude Picard Bokuda Djemona (Mr Djemona), to which a child (Ellphie) was born on 4 September 1994 (ST6/228). Ellphie is therefore the half-sister of the Applicant, through his mother.
The Applicant’s parents met in January 1995, and shortly thereafter moved in together in Kinshasa (ST6/213). The Applicant was born later that year.
On 8 July 1996, the Applicant’s parents had another child (Naomi), who is the full biological sister of the Applicant (ST6/228).
On 23 July 1997, the Applicant’s Mother gave birth to another child (Leah), whose father is also Mr Djemona (ST6/228). Leah is the Applicant’s second half-sister, through his mother.
On 27 November 1997 the Applicant’s Mother married Mr Djemona (ST6/228).
At some time in 1998, Mr Djemona moved to another part of the DRC, and the Applicant’s parents briefly resumed their relationship. Mr Djemona returned to the Applicant’s Mother in or around July 1999, but a warrant was issued for his arrest and he left for Brazzaville, also in the DRC (ST6/214).
On 20 September 1999 the Applicant’s Mother gave birth to another child (Israel), who is the full biological brother of the Applicant (ST6/214 and 228).
In May 2000, the Applicant’s Mother was arrested (ST6214). Naomi, the Applicant and their brother Israel were cared for by the Applicant’s Father’s sister (paternal aunt). The Applicant’s half-sisters Ellphie and Leah were cared for by the Applicant’s Mother’s friend. The Applicant’s Mother was incarcerated for a period of 5 months (ST6/214).
In October 2000 the Applicant’s Mother was released, and she moved with Ellphie and Leah to live with Mr Djemona in Brazzaville, where they stayed until 2006. In 2006 Mr Djemona, the Applicant’s Mother, Ellphie and Leah were granted humanitarian visas to Australia.
The Applicant’s Mother separated from Mr Djemona in or around February 2007 and they divorced in October 2008.
The Applicant’s parents married on 15 July 2010 in Johannesburg, South Africa (ST6/229 and 219).
The Applicant’s Father’s Temporary Partner Visa (subclass 309), to which the Applicant was included, was granted on 21 November 2011 (ST6/267).
The Applicant’s date of birth
On 13 December 2010 the Applicant’s Father lodged a combined application for a Partner (Provisional) (subclass 309) / Partner (Migrant) (subclass 100) visa, by way of a Form 47SP (Form 47SP) (ST6/217). The Applicant, who was then 15 years old, was included as a dependant applicant.
Question 38 of the Form 47SP asked for details of the Applicant’s Father’s children.
The Applicant was listed first, and his date of birth was said to be 20 September 1995 (ST6/223). Naomi was listed second, with a date of birth of 8 August 1996. Israel was listed last with a date of birth of 20 September 1999.Question 64 of the Form 47SP asked for details of the Applicant’s Mother’s children. All five of the Applicant’s Mother’s children appear in answer to that question. Importantly, in this section the Applicant’s date of birth was said to be 21 October 1995 (ST6/228).
The Applicant’s Mother completed a Form 40SP Sponsorship for a partner to Migrate to Australia (Form 40SP), which was lodged on 13 December 2010 (ST6/241). Question 19 sought details of the Applicant’s Father’s dependent family members, and the Applicant was again identified with a date of birth of 21 October 1995 (ST6/243). Naomi and Israel’s dates of birth were consistent with those given in the Form 47SP.
A birth certificate for the Applicant was provided in support of the Form 47SP. That birth certificate was issued on 17 June 2009 and shows the Applicant’s date of birth as 21 October 1995 (ST4/202) (the 2009 Birth Certificate).
On 7 October 2010 the Applicant’s Mother wrote a statutory declaration in support of the Form 47SP. That statutory declaration also refers to the Applicant’s birth taking place on 21 October 1995 (ST6/213 at [3]).
On 7 September 2011, a pathology report for the Applicant was prepared by Lancet Laboratories. That report recorded the Applicant’s date of birth as 21 October 1995 (T13/167). The results were confirmed to be correct, on enquiry (ST2/196).
On 8 September 2011, a migration chest x-ray report for the Applicant was prepared by Dr Louis Sulman & Partners Diagnostic Radiologists (T13/168). That report recorded the Applicant’s date of birth as 26/10/1995. The report was reported as authentic, on enquiry (ST3/198).
The Applicant, as dependant applicant, was granted a Spouse (Provisional) (subclass 309) visa (Temporary Partner Visa) on 23 September 2011 (ST6/267). The visa grant notice listed his date of birth as “20 September 1995” and the same date was picked up on his Document for travel to Australia (DFFTA).
The Applicant arrived in Australia with his father and siblings in Australia on 30 December 2011. The Applicant (again as a dependant) was granted the Permanent Partner Visa on 19 April 2013. The Permanent Partner Visa grant notice listed his date of birth as “20 September 1995” (T2/7).
In 2016, the Applicant was unable to locate the 2009 birth certificate (Exhibit A1 Bundle/6) and sought a replacement birth certificate. He sent a copy of his Australian Permanent Partner Visa grant notice as required. The 2016 Birth Certificate was issued on 17 October 2016, giving the Applicant’s date of birth as “20 September 1995”.
The Applicant’s evidence was that he himself believed that his date of birth was 20 September 1995, until he received the adverse information letter from the Department dated 7 November 2019 (Transcript/20-22). He indicated that he had not spoken to his mother about his application for citizenship, because he wanted to surprise his family, but that he raised it with his mother sometime after 7 November 2019 and learned then that he was born on 21 October 1995 (Transcript/20-22).
The date of the Applicant’s conversation with his mother is unclear: in his letter to the Department of 10 January 2020, the Applicant was still asserting that:
“I assure you, I am Christian Bongely born on the 20th September 1995; the date stated of 21th (sic) October 1995 could have been an error of typing. This can be attested to [the Applicant’s Mother] who brought me here to Australia…” (T15/180).
When the Applicant submitted his application the present review to the Tribunal on 13 March 2020, he gave his date of birth as 20 September 1995 (T1/2). He was unable to explain how he came to put the 20 September 1995 date of birth in his application to the Tribunal, when he conceded that he already knew from his mother, at that stage, that he was born on 21 October 1995 (Transcript/23).
The Applicant contends that the 20 September 1995 date of birth included in the Form 47SP was a typographical error, and notes that his brother Israel’s day and month of birth are also 20 September. The Applicant says that the Department then picked up the incorrect entry and replicated it on subsequent documentation. The 2016 Birth Certificate was issued on the basis of the Australian official documents, rather than on any internal records and was issued with an incorrect date as a result.
The Respondent did not suggest that the Applicant had any alternative identity to the one claimed (Transcript/8) but submitted that the Tribunal could not be satisfied of the Applicant’s identity ‘as he has portrayed it to the Department”. (Transcript/8)
The Respondent emphasised:(a)the lack of any reliable documentary evidence of the Applicant’s identity prior to 2009; and
(b)the questions raised about the reliability of the 2009 Birth Certificate, in light of its inconsistency with the 2016 Birth Certificate. (Transcript/64, 69–70)
It became apparent during the Tribunal hearing that the Applicant’s Mother had changed her name more than 10 years after the birth of the Applicant, and that it was her name at the date of applying for the 2009 Birth Certificate which was on that certificate and not her name as it was recorded at the date of the Applicant’s birth (Transcript/45, 49).
The Tribunal accepts the Respondent’s submission that the 2009 Birth Certificate is not based on any government record but is informed by the information provided by the Applicant’s Mother as at 2009. It does not therefore reflect a contemporaneous record of the Applicant’s birth (Transcript/64).
The Applicant’s Mother gave evidence to the Tribunal that the Applicant’s date of birth was 21 October 1995. She was confident of that date, and said that:
(a)she had not seen the visa issued with the 20 September 1995 birthdate, because they were sent directly to the Applicant’s Father; (Transcript/41).
(b)the travel documents that included the 20 September 1995 birth date had been sent to her, but she had sent them on to the Applicant’s Father without reviewing them; and
(c)the Applicant had not consulted her prior to submitting his Citizenship Application (Transcript/41–42).
The Tribunal found the Applicant’s Mother’s evidence of his date of birth to be compelling. The Respondent did not suggest either in cross-examination or in closing submissions that the Applicant’s Mother was either lying or mistaken about his date of birth. The Respondent expressly conceded that the Applicant’s Mother had been consistent in the evidence that she had given about the Applicant’s date of birth (Transcript/66).
Based on the above, the Tribunal finds that the Applicant’s date of birth is 21 October 1995.
The Applicant’s school records
The Applicant did not provide any school records with his initial application for Australian citizenship. On 13 December 2017 he attended a citizenship interview and was told that the identity officer was not satisfied with the identity documents presented at the interview, that he would not be permitted to sit the Australian citizenship test that day, and that a further request for information would be sent to him (T2/12). That further request has not been provided to the Tribunal.
The Applicant’s account of what happened next was in the following terms:
MS GRAZIOTTI: You also provided a school document in support of your citizenship application. Can you tell the [T]ribunal how you got this certificate?
APPLICANT: Yes, that was after when I sent the application, and then I got - I think I got invited for - to do a test or something for the citizenship, and then the person who was asking me was, like, “Well, there is not enough evidence” or something, and then if I can - if I have any school record of anything. I was, like, “I’m not too sure. I have to find out then”. Yes, I didn’t do the test, and I went back home and then I contacted if - my dad’s younger brother’s friend, if he could provide me with the school reports, because we attended the same school back then. And - sorry.
MS GRAZIOTTI: No, go on?
APPLICANT: And he requested me to pay, what’s it, 70 - 80 - 70 or $80 - yes, $80. Yes.
MS GRAZIOTTI: Okay. So, you contacted your - someone who you went to the same school with ‑ ‑ ‑?
APPLICANT: Yes.
MS GRAZIOTTI: ‑ ‑ ‑and you paid them $80, and then what happened?
APPLICANT: Yes, and they say, okay, they will get me the school reports. I said, “Okay”, then I just sit and wait for it, so ‑ ‑ ‑
MS GRAZIOTTI: And when it arrived what did you do with it?
APPLICANT: When it arrived I just took it to the translator to get translated, and then I submitted straightaway.
MS GRAZIOTTI: And did you ask your parents or anyone else for help to get this document?
APPLICANT: No.
MS GRAZIOTTI: Did you try and get any other documents to support your citizenship application at that time?
APPLICANT: No.
MS GRAZIOTTI: And did you look at this document before you gave it to the [D]epartment?
APPLICANT: Well, I just saw my name and the school report, then just sent it to get translated and then I just sent it (Transcript/13-14).
During cross examination the Applicant provided the following further information:
MS LADHAMS: You’ve said that when you got the school record you asked your dad’s friend, or your old school friend, over Facebook to get that document for you?
APPLICANT: Yes. Yes, I think Facebook - yes, Facebook.
MS LADHAMS: Have you got a copy of the Facebook messages that were sent between you and your friend?
APPLICANT: I couldn’t find anything when I was looking for it. My lawyer was - she did ask me as well, but I couldn’t find it on the message.
MS LADHAMS: Do you know whether you ever deleted it?
APPLICANT: No.
MS LADHAMS: Can you remember exactly what you asked him?
APPLICANT: Yes, I asked him I’m trying to do my citizenship and they asked me for a school record; do you think you can get me our school record, and he just say sure, I can, and then I think it was a week later or something, or a couple of days or something, he’s like, that will cost you 70‑something or 80‑something. I said okay, and then I sent him the money, that’s it.
MS LADHAMS: Did you try and go to the school yourself to ask for the document, for example, by sending an email to the school to say can you provide my records?
APPLICANT: No.
MS LADHAMS: Why not?
APPLICANT: I didn’t know the name of the school. I didn’t remember, because he’s the one who - because he is older than me, like, he was in five or six, like, grade higher than me, so I just asked because he’s the one who could remember the school, the one we went to. That’s why I rely to him, and then he sent me it. I just took it to translate it, and I just post it or email it to the - was it Home Affairs or - the Australian thingee [sic] where they were asking me for the school reports, I just send it straightaway. (transcript/24)
The Adverse Information Letter sent to the Applicant described the enquiries made into the school reports in the following terms:
For your citizenship application, you provided school records issued in 2007 by the Ministry of Primary, Secondary and Professional Education to support your claimed identity. The Post advised, “On 18 September 2019 and 22 October 2019, a representative of IOM in Kinshasa attended the school and was advised that the school did not open until 2014, as such it was not possible for the applicant (you) to have been enrolled there from 2006 to 2007”. In addition, the Head Master confirmed that the document provided was fraudulent. Therefore, the Post determined that your school records are counterfeit documents. It is open to you to comment or provide an explanation regarding this adverse information.(T14/172)
The Applicant made the following comment in the Adverse Information Response:
Regarding my school records in 2006/2007: this was obtained by requesting the assistance of a family friend. At that time was a time of turmoil in Congo, so school attendance was not regular like it is here in Australia. As a result, my memories of school at that time are very vague. The family friend I entrusted to get the school records assured me they knew what school I attended and with hindsight I realise I was the victim of a fraudulent activity as I was told that the school requested approximately 83 US dollars to release the records and I have attached a receipt of the money I sent. I assumed the record was legitimate.
In summary I believe my main error was not paying closer attention to the document provided for my school records. If I have paid closer attention, I would have noticed myself that the documents were fraudulent and would not have submitted them. I would have instead stated that the records of my education in Congo could not be found. (T15/179)
The Tribunal notes the Applicant’s immediate acceptance that the documents were counterfeit, although the basis for this is unclear.
The Respondent presses the position that the Applicant has provided fraudulent documents to the Department (Transcript/7), whether knowingly or unknowingly. However, the Tribunal notes that the evidence that the school records are counterfeit is at best flimsy. The identity of the ‘representative of IOM in Kinshasa’ is unknown. It is not clear which school is meant by “the school”, or on what date “the school” was visited by the representative. The email reporting the visit uses the phrase “from 18 September to 22 October” (ST4/200). That was subsequently reported to the Applicant as being two separate visits that took place on 18 September and 22 October 2019; in the Tribunal’s view, the more likely interpretation is that the date of the visit was unknown.
It is not clear why the Headmaster’s opinion that the school records are counterfeit should have any weight, without some further explanation of his reasons or further details as to his expertise. The school records appear to be government issued rather than produced by the school itself; it is not clear why “the school” was consulted rather than the relevant DRC government agency (ST4/203).
Importantly, there is no evidence of whether any enquiry was made as to whether any school known to the relevant government authority as “Ecole Franco-Anglaise” was operating in 2007/2008. Given that the school which was approached by the representative had only been operating since 2014, it is not unreasonable to conclude that the name ‘French-English School’ was previously used in relation to another education provider in the same area.
The Tribunal is unable to make a positive finding on the currently available evidence that the school records are a fraudulent document. It follows that the Tribunal cannot make a finding that the Applicant knew the school records to be fraudulent when he submitted them in support of his application for citizenship.
The Tribunal does find, however, that the Applicant was careless in his submission of evidence that he expressly concedes he did not pay due care and attention to, and which he says he would likely have considered to be fraudulent if he had paid sufficient attention.
The Applicant did not provide the Department with any covering information about the source of the documents, nor any information on his inability to independently verify the name of the school or the dates of attendance.
The Applicant’s errors in his application for citizenship
The Applicant’s application for citizenship was incorrect in a number of respects. Of most concern to the Tribunal is the failure of the Applicant to correctly answer question 34 with respect to his immediate family members. The Applicant explained this failure at the hearing in the following terms:
MS LADHAMS: Now, when you filled out this citizenship form there was a question where it asked you to identify your other immediate family members, and you’ve said that you had no other immediate family members other than your mum and dad?
APPLICANT: M’mm.
MS LADHAMS: Do you remember filling the form out that way?
APPLICANT: Yes, I remember filling but (indistinct), like over (indistinct) to understand it properly. I just ticked no, because before that question it was asking about if you have any - is it kids or baby, any dependent for yourself or something. Then I was ticking no, and then that’s why I ticked, then they overlooked it.
MS LADHAMS: Why did you say that you had no siblings?
APPLICANT: I didn’t quite understand it. I didn’t quite understand that question well.
MS LADHAMS: Did you know at the time that you were filling in an important document that had to be accurate?
APPLICANT: Yes.
MS LADHAMS: So if you didn’t understand the form, is there any reason why you didn’t ask for help?
APPLICANT: Any reason?
MS LADHAMS: And then at the end of the form, you’ve signed a declaration. Do you remember signing the end of the form?
APPLICANT: Yes.
MS LADHAMS: Did you read the form before you signed it?
APPLICANT: Not really.
MS LADHAMS: So you have signed a declaration that the information in the form is complete, truthful and correct in every detail, and you’re saying now to the [T]ribunal that you didn’t understand the form, you didn’t fill it in correctly, and you signed it without seeking help about what you were signing, is that correct?
APPLICANT: Yes. (Transcript/21)
(Emphasis added).
The Tribunal notes that question 34 is framed in the following way:
34 Do you have any other immediate family members whose details have
not been provided in this application?
Immediate family members include full, half, adopted and step
brothers and sisters, a spouse or de facto partner including if deceased
No
Yes Provide details… (T10/147)
(Original emphasis).
There is no obvious ambiguity in the question. If the Applicant’s command of English was such that he did not understand the words ‘brothers and sisters’, then it is not clear to the Tribunal as to how he was able to understand the balance of the application form.
The preceding question on the application form, question 33, did not ask about “kids or baby, any dependent for yourself”; questions 31 and 32 comprise “Part C – Your parents/adoptive parents”.
The Tribunal does not accept the Applicant’s evidence that he did not understand question 34, although there is no alternative explanation for the Applicant’s behaviour. There is no obvious reason why the Applicant would expect to benefit from withholding any of his family details, nor any obvious motive for the Applicant to lie about his siblings.
The Applicant made further errors and omissions on his application form; for example, he answered ‘no’ to question 12, which asked whether he had an email address (T10/138). His evidence before the Tribunal was that he thought he did have an email address at that stage, but that he answered no because he thought the question was asking him whether he wanted to receive responses by email. The Applicant further indicated that he did not check his email very often (Transcript/29).
In answer to question 33, the Applicant also gave the date on which his mother acquired Australian citizenship as 20 September 1995 (T10/145). She actually became a citizen on 2 October 2008 (Applicant’s SFIC [15]; Exhibit A1 Bundle/1, 9).
The Tribunal has considered whether the Applicant’s understanding of the written English language was so poor that he was unable to properly understand the application form. However, the Applicant’s evidence is that he is literate in the English language. The Tribunal enquired of him whether he would be able to read something written in English aloud, that he had not previously read before, and he answered in the affirmative (Transcript/26).
The language used in his correspondence with the Department was reasonably sophisticated (T15/179), although the Tribunal notes that the Applicant had some assistance from his Church Minister to perfect the English in this letter (Exhibit A1 Bundle/7 at [20]). The Applicant works as a laboratory technician and has been promoted at least once by his employer; a position and performance which is thought to be consistent with a being a literate person (Transcript/29).In the absence of any other explanation, the Tribunal finds that the Applicant has, at best, been flippant in his engagement with the citizenship application process. On balance, the Tribunal finds it more likely that the Applicant has been careless in his completion of his form, rather than intentionally dishonest. That finding is based on the apparent lack of motive for any intentional dishonesty, as well as the view that the Tribunal formed of the Applicant during the proceedings.
Other evidence of the Applicant’s character
The Applicant says that there is sufficient evidence before the Tribunal to satisfy it that he is of good character (Transcript/6).
The Applicant’s statutory declaration dated 5 August 2020 (Exhibit A1 Bundle/6-8)
The Applicant says in his statutory declaration (Exhibit A1 Bundle/7) that:
(a)he has not left Australia since he arrived in 2011;
(b)he has no criminal convictions;
(c)he works as a lab technician for SGS on a FIFO roster to the Northern Star site;
(d)he had, at the time of the statutory declaration, been working for SGS for around two and a half years;
(e)on weekends he goes to the White House Community Church in Langford and has done so since arriving in Australia;
(f)he has completed first aid courses in school and TAFE.
Whilst none of these facts is inconsistent with being a person of good character, none of them is determinative of good character.
Reference of Heath Oliphant, SGS Jundee (Exhibit A1 Bundle/11)
The Applicant provided the Tribunal with a reference from Mr Heath Oliphant dated 12 August 2020. It is addressed “To Whom It May Concern” and does not state the purpose for which it is written. It is brief, and reads as follows:
Dear Sir or Madam,
This is to certify that Mr. Christian Bongely is an employee at SGS and is working as a Fire assayer since August 2018
During this time he has completed his job at a competent level and progressed through multiple positions. Christian is a pleasure to be around and the jundee lab is better when he is on site.
If you have any questions regarding Christian’s employment, please contact our office…
Whilst the Tribunal appreciates that progression at work might be indicative of good character, as a character reference it is relatively weak.
Statement of Lucy Woolley (Exhibit A1 Bundle/12)
The Statement of Lucy Woolley dated 14 August 2020 deposes to her knowledge of the Applicant over a period of four years, during which time she had been “in and off” a relationship with the Applicant for three years. She says that they have managed to remain friends and speak on the phone several times a day.
Ms Woolley asserts that the Applicant is ‘a very good character’ who is ‘an honest person’ and ‘always has good intentions’. She says that he is ‘a hard worker when he sets his mind to completing something’.
Ms Woolley refers to the Applicant’s Citizenship Application and opines that he ‘should definitely be granted Australian citizenship’.
Statutory Declaration of Ashley David Gerald van Wyk, Minister (Exhibit A1 Bundle/13)
Mr van Wyk deposes as follows:
1. I am an Australian citizen and have lived in Australia since 1995.
2.I first met Christian Bongely in South Africa whilst being on holiday with my family. Christians (sic) mum who attended the church I pastor asked me if I could meet up with her family who were refugees in South Africa at that time. This was in 2009. I met Christian, his dad Innocent and 2 siblings Israel and Naomi.
3.I have known Christian since 2009. It was a joy for me to be a part of seeing mum Virginee reunited to her family in December 2011. The family has and still attends our church The White House Community Church. Christian would attend together with his family. As time went by and having a job his attendance became less frequent.
4. I have no reason to doubt Christian’s character. He displays a very warm and gentle character.
5.I would strongly support Christian’s application to be accepted as an Australian Citizen. Christian is currently employed and to my knowledge does not have a criminal record. To my understanding I believe Christian had no intention to falsify his documents for Citizenship. This was a genuine mistake or oversight on his part.
6.My discussion with Christian regarding the difficulty he had in his request for Australian citizenship related to the issue of his birthdate. I could see this was a genuine oversight.
7. Please feel free to contact me if any further information is required.
Statement of Kevin Rawson, Laboratory Manager SGS Jundee (Exhibit A1 Bundle/14)
Mr Rawson’s statement is in the following terms:
I am writing to support Christian Bongely’s application to become a citizen of Australia. I am the Assistant Manager at SGS Jundee. Christian and I have been friends and colleagues since 2018 and I have always found them (sic) to be a very kind and upstanding person, he is always happy to lend a helping hand to anyone who requires it. Christian is very involved in his community, consistently attending local events and helping neighbours.
Christian is also very committed to his work at SGS Australia. He have (sic) been a dedicated employee for several years and is extremely dedicated to his job, regularly putting in overtime or covering nightshifts when required. Christian is also a very dedicated family man and always prioritizes spending time with them when he is not onsite.
I have been very fortunate to know Christian as a friend and colleague, and I am confident that should his citizenship application be accepted, he will make an incredible addition to this country.
If you have any questions regarding Christian’s employment, please contact our office…
The Tribunal accepts that the collective evidence of the Applicant’s former girlfriend, the Minister of the Applicant’s church, and the Applicant’s work colleagues supports the proposition that the Applicant is a person of good character. He clearly has positive attributes that are valued by his immediate community.
Is the Tribunal satisfied of the Applicant’s identity?
Biometrics
There is no challenge to the Applicant’s biometrics by the Respondent, and the Tribunal is satisfied that the appearance of the Applicant at the hearing matched the photographs on his driver’s licenses (T10/160, T11/161). However, the biometric evidence dates from 2015, and does not cover the first 14 years of the Applicant’s life.
Documents
The documentary evidence before the issue of the Australian documents is problematic. The first known birth certificate for the Applicant was issued in 2009 and was informed by information provided to the issuing authority by his mother at that time. It cannot be used to verify the evidence of the Applicant’s Mother as to the Applicant’s date and place of birth. Whilst the Applicant’s adult life is satisfactorily documented on his Australian issued documents, his early years are not evidenced by any documentary evidence whatsoever.
The Applicant’s life story, however, explains to the satisfaction of the Tribunal the gaps noted in the early biometric and documentary evidence.
Life story
With respect to the “Life story” pillar of identity, the CPI 16 explains, at paragraph [4.4], that:
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 happen to the 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.
The Applicant’s Mother gave evidence that he was born in Kinshasa on 21 October 1995. Her evidence in that regard has been consistent throughout her dealings with the Department.
The evidence in the Applicant’s Mother’s statutory declaration dated 5 August 2020 (Exhibit A1 Bundle/9) was that the Applicant lived with her until 2006 after which time he lived with his father. That was not consistent with her earlier statutory declaration, dated 7 October 2010, in which she deposed that the Applicant lived with his paternal aunt from 2000 (ST6/214).
The evidence that she gave to the Tribunal was different again; she reported that the Applicant had actually stayed with his father but been cared for by his paternal aunt, who lived nearby.The Applicant’s evidence to the Tribunal was that he did not recall when he first lived with his paternal aunt and did not recall how long he had lived with her. The following exchange occurred in cross examination:
MS LADHAMS: How long did you live with your auntie for?
APPLICANT: I’m not too sure.
MS LADHAMS: Do you know approximately? So, does it - if I said one year, would that sound accurate or 10 years or a few months? Do you know approximately how long you lived with your auntie?
APPLICANT: I have no idea. I don’t know.
MS LADHAMS: Do you ever remember a time when your mother lived in Congo Brazzaville?
APPLICANT: Do I what?
MS LADHAMS: Do you know whether your mother ever lived in Congo Brazzaville in your life time?
APPLICANT: Do I remember if?
MS LADHAMS: Do you know if your mum ever lived in Congo Brazzaville?
APPLICANT: Yes.
MS LADHAMS: She did?
APPLICANT: I think she moved - she moved or - I think she moved to Brazzaville or something.
MS LADHAMS: When you were growing up did you live with your mum more or your auntie more?
APPLICANT: Growing up, I’d say with - more with my auntie, I think. With my mum and then moved to my auntie. Don’t really remember though if - who I lived more. (transcript/17)
…
MS LADHAMS: So, did you ever live with your dad before you went to South Africa?
APPLICANT: Yes, before coming to South Africa we were with my dad and my dad moved to South Africa. There is no - was a reason or anything, just - and I stayed with my auntie.
MS LADHAMS: Okay, so, when your mum left you went to live with your dad?
APPLICANT: I think just - yes, I think just my auntie. I’m sure was just my auntie.
MS LADHAMS: So you never lived with your dad then in Congo?
APPLICANT: In Congo. I think we did, but I don’t remember when was that.
MS LADHAMS: Did you live with your brothers and sisters when you were growing up?
APPLICANT: Yes.
MS LADHAMS: All of them or just some of them?
APPLICANT: No, me and Israel, and Alfie and Leah.
MS LADHAMS: Did you ever live with Alfie and Leah?
APPLICANT: Yes, we did, but I don’t remember when it was - when- it was when - yes, I think we did. (Transcript/18)
The Applicant recalled attending school, although he did not recall the name of the school or the dates of his attendance. The details drawn from the Applicant about his schooling make it clear that it was not an experience referable to an Australian school education.
His attendance was inconsistent, at least in part because there was not always enough money to pay school fees.The Applicant recalled being asked to leave the class ‘once in a while’ because the fees had not been paid (Transcript/30), and he recalls the same thing happening to other students. To the best of his recollection the premises of the school was a house that had been converted. He recalled that it might have been blue but did not recall a sign.
He described the need to stand outside the school until his name was called and then he would go to a classroom of mixed age children with one teacher. He described a uniform that was white with black or blue.The Tribunal is satisfied that the Applicant eventually made a genuine attempt to recall as many details of his schooling as possible during his evidence, although there appeared to be some initial reluctance to recall the details when responding to Ms Ladhams’ questions.
The Tribunal accepts the evidence of the Applicant’s Mother as to the date and location of his birth, and accepts that the Applicant’s early life story at least includes the following details:
(a)The Applicant was born on 21 October 1995 in Kinshasa to his parents, who were his Mother and Father as defined in these Reasons. He had one older sister at the time of his birth. His parents had a further two children together, and between the births of his full biological siblings, the Applicant’s Mother also had a child with (and married) Mr Djemona.
(b)The Applicant lived with his mother until at least 2000, when she was incarcerated. He did not live with her when she moved to Brazzaville, although it’s possible he visited her at some stage.
(c)During his mother’s incarceration the Applicant lived with either or both his father and his paternal aunt, together with his two full biological siblings. He remained living with them after his mother’s move to Brazzaville. His two half siblings stayed with a friend of the Applicant’s mother during her incarceration and moved with her to Brazzaville on her release.
(d)When the Applicant’s Father moved to South Africa, the Applicant remained living in Kinshasa with his paternal aunt. He and his two full biological siblings moved to South Africa to be with his father in or around 2008 and were subsequently included on his father’s application for a partner visa to Australia after the marriage of their parents.
(e)At some stage during the period 2000-2008, the Applicant sporadically attended school. However, the Applicant was illiterate and innumerate when he arrived in Australia. He first learned to speak English in Australia.
Those life details are consistent with the details caught in the later documentary evidence of the Applicant and are consistent with his and the Applicant’s Mother’s evidence before the Tribunal. They comprise the details of a single unique individual, accurately distinguished from other individuals by the data that the Applicant proposes be reflected in his citizenship documents.
The Tribunal is affirmatively satisfied of the Applicant’s identity prior to 2011, based on his life story, and the oral evidence of his mother. The Tribunal is affirmatively satisfied of the Applicant’s identity after 2015 on the biometric evidence and is affirmatively satisfied of the Applicant’s identity after 2011 on the documentary evidence.
Is the Tribunal satisfied that the Applicant is of good character?
Application form
The Tribunal is concerned with the Applicant’s incorrect answer on his Citizenship Application, with respect to whether or not he has any siblings. The failure to answer such a simple question in a forthright manner raises questions regarding the Applicant’s honesty.
The Tribunal has not been able to identify a motive for the Applicant to lie in his application form but does not accept that the Applicant did not fully appreciate the meaning of the questions. There is no ambiguity in the question, and it is framed in simple language. It is clear from his statutory declaration (Exhibit A1 Bundle/7 at [20]) and the reference of Mr van Wyk (Exhibit A1 Bundle/13 at [6]) that the Applicant had someone outside his immediate family that he could call upon for assistance if he needed it. There is no evidence before the Tribunal that the Applicant needed such assistance; the evidence of the Applicant is to the contrary.
The Tribunal finds that the Applicant simply did not give sufficient weight to the need to ensure that the information he provided in his application for citizenship was complete, truthful and correct in every detail. He was flippant with a document that needed to be dealt with very seriously. It is difficult, in that circumstance, for the Tribunal to be satisfied of the Applicant’s good character.
School records
The Tribunal accepts that the Applicant could not recall sufficient information about his school to make a direct request for his records to the school. It is possible that the Applicant’s parents may have had more information about the school, had the Applicant made enquiries of them. However, the Tribunal accepts the Applicant’s evidence that he thought he was making enquiries through a former student of the same school, which would, on the face of it, appear to be a reasonable line of enquiry.
The Tribunal notes that the Department’s enquiries about the authenticity of the school records resulted in a representative attending the school to obtain information.
The Tribunal infers from that physical attendance that there was no simple way to contact the school in writing or by telephone to obtain information. In that circumstance, the Tribunal sees nothing amiss in the Applicant preferring to seek assistance from an agent ‘on the ground’ rather than attempting to contact the school from Australia.However, the Tribunal finds that the Applicant should have included information about the school records to the Department, including the line of enquiry that he had employed to obtain them, the amount that he had been asked to pay for their issue, and any inconsistencies on the face of the document with his recollection of his schooling. To provide the records absent these details was to potentially mislead the Department as to the probative value of the document that was produced.
The Applicant’s failure to provide a full explanation alongside the school records is further evidence of his lack of appreciation for the level of detail and diligence required when he made an application for Australian citizenship.
In the circumstances, it would take more than the statutory declaration and the references provided by the Applicant to satisfy the Tribunal that the Applicant is of good character. There is not enough evidence of good character to overcome the doubt engendered in the Tribunal by the Applicant’s conduct during the citizenship application process.
CONCLUSION
In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 the Tribunal stated at [8] that:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home.
The Tribunal has reviewed all evidence relating to the questions on Applicant’s identity and good character, in relation to his application for Australian citizenship by conferral.
Based on the evidence discussed above and following the Tribunal’s analysis of the three pillars of identity, the Tribunal is satisfied of the Applicant’s identity.
However, the Tribunal is not satisfied that, at the time of the Reviewable Decision, the Applicant was of good character pursuant to section 21(2)(h) of the Citizenship Act.
The Tribunal accepts that the Applicant has good intentions and good qualities. However, the Tribunal cannot be affirmatively satisfied that the Applicant is of good character.For clarity, the Tribunal does not make a finding that the Applicant is not of good character. The Tribunal is simply unable to be satisfied, on the evidence before it, that the Applicant was of good character at the time of the Reviewable Decision, in the context of the Applicant’s demonstrated lack of appreciation of the need to be both honest and forthcoming in his dealings with the Department, irrespective of any personal cost.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent to refuse the Applicant citizenship by conferral on 17 February 2020, is affirmed.
| I certify that the preceding 133 (one hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Member J Henderson |
...............[Sgd].........................................................
Associate
Date of hearing: 5 May 2021 Solicitors for the Applicant: Ms A Graziotti, Estrin Saul Lawyers Solicitors for the Respondent: Ms A Ladhams, Australian Government Solicitor Dated: 15 July 2021
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Standing
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Jurisdiction
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Statutory Construction
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