BYWX and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)

[2023] AATA 1439

BYWX and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2023] AATA 1439 (29 May 2023)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/10237
general Division	)

Re: BYWX
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Senior Member R Bellamy

DATE OF CORRIGENDUM:            31 May 2023

PLACE:           Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application as follows:

1.The text “Fatemeh” in paragraphs 17, 31, 34 and 40 is replaced with “Fatemah”;

2.The text “Fatima” in paragraph 19 is replaced with “Fatemah”; and

3.The text “Fatiemah” in paragraph 39 is replaced with “Fatemah”.

......................[SGD]........................
Senior Member R Bellamy

Division:GENERAL DIVISION

File Number:          2021/10237

Re:BYWX  

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member R Bellamy

Date:29 May 2023  

Place:Brisbane

The decision under review is affirmed.

......................[SGD]........................

Senior Member R Bellamy

CATCHWORDS

CITIZENSHIP – refusal of an application for Australian citizenship by conferral – section 21(2)(h) of Australian Citizenship Act 2007 – whether Applicant is of good character – previously provided false information to the Department – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Re Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA

SECONDARY MATERIALS

Department of Immigration and Border Protection, Australian Citizenship [Policy Statement] (Reissued 27 November 2020)

Department of Immigration and Border Protection– Citizenship Procedural Instruction 15 – Assessing character under the Citizenship Act (Reissued 26 February 2021)

REASONS FOR DECISION

Senior Member R Bellamy

29 May 2023

1. The Applicant is a citizen of Iran. She entered Australia as an illegal maritime arrival in 2011. She provided a false name and applied for protection based on false claims of persecution. She was ultimately granted a protection visa after converting to Christianity. In 2018 she applied for Australian citizenship by conferral, but she did not disclose that she had previously provided incorrect information about herself. She now claims to have provided that false information under pressure and she says she is an honest person. The issue for determination is whether the Tribunal is satisfied that the Applicant is now a person of good character. If not, she is not eligible for citizenship.

   LEGISLATIVE SCHEME

2. Under section 21(1) of the Australian Citizenship Act 2007 (Cth) (“the Act”), a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Act provides that if a person makes an application under section 21, the Minister must, in writing, approve or refuse to approve the person becoming an Australian citizen. Section 21 of the Act provides general eligibility criteria for citizenship by conferral along with criteria that apply to certain categories of people. The general eligibility criteria in section 21(2) of the Act apply to the Applicant. They are, relevantly:

   A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (a)is aged 18 or over at the time the person made the application; and

   (b)is a permanent resident:

   (i)    at the time the person made the application; and

   (ii)    at the time of the Minister’s decision on the application; and

   …

   (h)   is of good character at the time of the Minister’s decision on the application.

3. Under section 24(2) of the Act, the Minister may still refuse to approve an Applicant becoming an Australian citizen even if they are eligible under section 21(2) (or other applicable eligibility criteria).

4. The term “good character” for the purposes of s 21(2)(h) is not defined in the Act, but it is addressed extensively in the “Australian Citizenship [Policy Statement]” (“the Policy”) and the Citizenship Policy Instruction 15 – “Assessing Good Character under the Citizenship Act” (“CPI 15”). These are departmental policies that were not made under a legislative power but in an exercise of executive power. They are not binding but should be applied unless there are cogent reasons not to.[1]

   [1]    Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [644]-[645] per Brennan J.

5. CPI 15 relevantly advises that 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, which is an objective assessment. CPI 15 states that the phrase “enduring moral qualities” encompasses:

   ·   characteristics which have been demonstrated over a very long period of time;

   ·   distinguishing right from wrong; and

   ·   behaving in an ethical manner, conforming to the rules and values of Australian society.

6. CPI 15 further notes that a person of good character would “respect and abide by the law in Australia and other countries”, and that the evaluation of a person’s character requires a holistic assessment of the person’s aggregate qualities and their behaviour over a period of time. In my assessment of the Applicant’s character, I should consider matters including, but not confined to, her family life and involvement in the community, whether she is genuinely remorseful for past wrongdoing, and how much time has elapsed since that wrongdoing.

7. The Tribunal has previously observed 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 refusal to grant citizenship is not a second form of punishment…The refusal does not deprive [the Applicant] of any rights he currently holds; nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community”.[2]

   [2]   Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8] per DP Breen.

8. More recently, SM Puplick stated:

   “Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government.

   These values and qualities are themselves a hallmark of good citizenship. Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard”.[3]

   [3] Re Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082 at [82]-[84].

9. While previous Tribunal decisions are not binding, I respectfully consider that these passages elucidate principles that are of central importance in this matter. 

10. It is apparent from the wording of section 21(2)(h) of the Act that the question is not whether a person is of bad character and therefore ineligible for citizenship. Rather, the question is whether a person is of good character, and therefore eligible for citizenship. If there is doubt about the person’s character, they cannot satisfy section 21(2) of the Act.   

11. On 2 December 2021 a delegate of the Minister for Immigration, Citizenship, and Multicultural Affairs (“the Respondent”) refused the Application on the basis that the Applicant did not meet the good character requirements under section 21(2)(h) of the Act. On 25 December 2021 the Applicant sought review of that decision. The Tribunal has jurisdiction to review the decision under section 52(1)(b) of the Act.  

12. I pause to note that the Respondent previously refused the application under section 24(3) of the Act because the delegate was not satisfied as to the Applicant’s identity.[4] However, with the Respondent’s consent, that decision was set aside by a differently constituted Tribunal and remitted to the Respondent with a direction that the prohibition under section 24(3) of the Act did not apply.[5]

    [4] Exhibit T1 – Section 37 T-documents, T19.

    [5] Exhibit T1 – Section 37 T-documents, T20; T23.

13. The hearing of this matter took place on 14 December 2022. The Applicant was assisted by her migration agent. She gave evidence via video conference. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”. Exhibit R2 was provided by the Respondent to the Tribunal and the Applicant’s migration agent after the hearing in response to questions from the Tribunal pertaining to the Applicant’s protection visa. That evidence broadly confirmed and clarified evidence given by the Applicant. It contains a very detailed fabricated account given by the Applicant of why she left Iran (more detailed than the account that was before the Tribunal when the matter was heard) and it shows that she persisted with that account even when questioned about certain aspects of it. In the hearing the Applicant admitted that the account she gave to immigration officers was false. She was not questioned about the level of detail or the fact that she stuck to it when challenged. As these aspects of her deception were not put to her, I draw no adverse inference from them specifically. I find only that she gave an account to the Australian authorities that she knew to be false for the purpose of obtaining a visa.

14. As the Australian government has accepted that the Applicant is in need of protection, this decision will not refer to her in a way that could identify her. In 2018 she legally changed her name to the name she had used when she entered Australia, so that name will not be disclosed in this decision. It is replaced with the pseudonym “Yasmin”. Her surname, which she always correctly declared, is replaced with the pseudonym “BYWX”. Her ex-husband and current husband are also referred to using pseudonyms.         

    FACTS

15. The Applicant was born Fatemah BYWX in Iran on 26 October 1988. She married “Mr RZ” there. Her name did not change upon her marriage.

16. On 22 June 2010, the Applicant was issued a Tourist visa by the Kingdom of Thailand in her legal name. She and her husband travelled to Thailand for a holiday.[6]

    [6] Transcript, page 3, line 11.

17. On 2 August 2010, a Business (Short Stay) visa application[7] was lodged on behalf of the Applicant and RZ for travel to Australia in late September/early October 2010 to attend a conference called “The Molecules of Life - from Discovery to Biotechnology”. Her given name on the application and all supporting documents was recorded as Fatemah. The supporting documents included a family composition form[8] signed by the Applicant, an Iran Identity Card, Iranian Passport, the Thai tourist visa, and a Short Term Investment Account. There was also a document purporting to be from the Ministry of Science, Research & Technology in Iran stating that the Applicant was enrolled in a Masters degree in cellular and molecular biology. In reality the Applicant was not enrolled in any course at all, and she was not planning to attend a conference. The application contained the following declaration that the Applicant signed:

    “I have truthfully declared all relevant details requested of me in this application…In any part of this form, which has been completed with the assistance of another person, I declare that the information as set down is true and correct and has been included with my full knowledge, consent and understanding”.

    [7] Exhibit T2 – Supplementary T-documents, ST1 and ST2.

    [8] Exhibit T2 – Supplementary T-documents, ST3.

18. The Applicant also signed multiple pages included in the application. On 4 August 2010 the application was refused.

19. On 21 November 2010, the Applicant, her husband and her mother arrived at Christmas Island as irregular maritime arrivals. A biodata form recorded her true surname but her given name was recorded as Yasmin, not Fatemah. There is a long dash in answer to the question whether she was known by any other names, indicating she was not. Her educational history was recorded as “high school diploma”. The form was dated 23 November 2010 and it indicated that the Applicant had completed it with the help of an interpreter.[9]  

    [9] Exhibit T2 – Supplementary T-documents, ST4.

20. On 27 December 2010, the Applicant participated in an entry interview with immigration officers.[10] She again gave her first name as Yasmin. In the written record of that interview, there is a page of a Department of Immigration and Citizenship case notebook that simply says “clients (sic) correct name is [Yasmin BYWX]”.[11] The record of the interview indicates that the Applicant was asked if she or any family member had ever applied for a visa to enter Australia, and she answered no. She also indicated that she had not ever travelled outside her home country.

    [10] Exhibit T2 – Supplementary T-documents, ST5.

    [11] Exhibit T2 – Supplementary T-documents, page 55.

21. In the 27 December 2010 interview, the Applicant told a story of persecution by the Basij. I take it to be a matter of general knowledge that the Basij is a loosely regulated voluntary organisation of self-appointed morality police known for harassing and brutalising members of the Iranian community in support of the Iranian authorities and a strict version of Shia Islam. The Applicant’s story included details such as her attendance at a post-election demonstration in 2009 where the Basij were attacking demonstrators; her family members trying to help an injured man while she recorded it with her phone; a Basij hitting her; RZ retaliating; them all fleeing and staying with various friends and relatives as they were afraid to return to their home; her brother going missing; and their home being raided by the Basij and identification documents being taken. She claimed to have been in hiding ever since and to believing that the Basij had her brother. She said if she returned to Iran she would be killed by the Basij.  

22. In the hearing, in response to questions from the Tribunal, the Applicant admitted that the story was untrue.[12] She said RZ told her to tell that story and she admitted that she knew the purpose of telling it was to stay in Australia as a refugee.[13] This was the first time that she disclosed to the Respondent that the account she gave was untrue.

    [12] Transcript, page 35, lines 23 to 41.

    [13] Transcript, page 49, lines 17 to 29.

23. On 19 February 2011, the Applicant completed a Form 80 “Personal particulars for character assessment”[14] which appears to relate to an application for a Protection visa made by RZ at that time.[15] In that form, she gave her first name as Yasmin. In a box next to the statement “Other names you are, or have been, known by” she gave the same first name with a slightly different spelling of her surname. This information was written in handwriting with her signature appended to it.[16] She also signed a declaration in that application that said:

    “I hereby declare that the information I have supplied in this form is, so far as I know or could reasonably find out, correct in every detail. I declare that I have read and understand the information supplied to me”.[17]

    [14] Exhibit T2 – Supplementary T-documents, ST7.

    [15] Exhibit T2 – Supplementary T-documents, ST6, page 67.

    [16] Ibid, page 85.

    [17] Exhibit T2 – Supplementary T-documents, page 101.

24. This was put to her in the hearing, and she claimed to have made a mistake and that she had not tried to “hide anything”.[18] 

    [18] Transcript, page 33, lines 23 to 25.

25. Also on 19 February 2011, the Applicant requested a Refugee Status Assessment, and her husband requested one the following day.[19] She gave an interview with an interpreter and migration agent.[20] On 5 April 2011, Negative Refugee Status Assessments were made. There followed numerous reviews and ultimately on 13 September 2012 the Applicant, her husband and her mother were assessed as meeting the refugee criteria in section 36(2) of the Migration Act 1958 (Cth). The basis of that assessment was their recent conversions to Christianity. It was accepted that they each had a well-founded fear of persecution in Iran on the basis of religion. It was further accepted that they had not converted to Christianity for the sole purpose of strengthening their protection claims, which would have disqualified them.[21]

    [19] Exhibit R2, page 2.

    [20] Exhibit R2, page 105.

    [21] Exhibit R2, page 2.

26. The Applicant’s twin daughters were born in late 2011.

27. In late 2012, the Applicant and RZ lodged a Protection (subclass 866) visa application for their family with the assistance of a migration agent. In the form relating to the Applicant, her given name was recorded as Yasmin. Oddly, she declared her religion to be Shia Muslim and so did RZ,[22] which she passed off in the hearing as a mistake made by her lawyer (which I take to mean her migration agent).[23] The question “Have you ever been denied or refused a visa or entry to another country?” was answered “No”. The question “Did you ever travel outside your home country or country of residence before your current journey to Australia?” was answered in the negative, i.e. the trip to Thailand was not disclosed.[24] Protection visas were granted to the family in late 2012.[25]

    [22] Exhibit R2, pages 54 to 104.

    [23] Transcript, page 61, lines 1 and 2.

    [24] Exhibit R2, page 76.

    [25] Exhibit T2 – Supplementary T-documents, ST8.

28. According to the Applicant, she broke up with RZ on her daughters’ first birthday.[26] That is the day after the visas were granted. She had very little to do with RZ after that. She arranged for her mother and a community agency to facilitate transfers of care of the children between her and RZ so she did not have to be near him. However, she recalled an incident, when her daughters were two or three years old, when RZ hit her and injured her mouth and she was hospitalised. The police attended.[27]

    [26] Exhibit T1 – Section 37 T-documents, T9.

    [27] Transcript, page 11, line 43 to page 14 line 5.

29. On 25 March 2014, the Brisbane Magistrates Court made a Protection Order naming RZ as the respondent, the Applicant as the aggrieved (the person in need of protection) and their twin daughters as named persons protected by the order. The order required RZ to be of good behaviour to all three, not commit domestic violence against them and not expose the children to domestic violence. The order was to expire on 24 March 2016.[28] While the Applicant was unable to confirm this, it appears that the order was related to the incident when RZ hit her. The Applicant indicated that apart from that incident, the only contact she had with RZ was in the form of text messages and phone calls in which RZ threatened to take their children or not bring them back.[29]

    [28] Exhibit T1 – Section 37 T-documents, T20, pages 136 to 137.

    [29] Transcript, page 14, lines 1 to 16.

30. The Applicant met her second husband “MM” when her children were three years old, which would have been in late 2014 or 2015, and they were married in late 2015. She described him as a calm person who gradually helped her to regain her self-esteem and “opened a new vision” of Christian life to her such that she decided to fully surrender her life to Jesus. He encouraged her to be active in his church so she was not confined to their home.[30] MM said he and the Applicant prayed together about her failure to disclose her real name to the Department and she eventually made a plan to correct her identity by changing her name to Yasmin.

    [30] Exhibit T1 – Section 37 T-documents, T13, page 68; T17, pages 100 to 103.

1. On 7 February 2018, the Applicant legally changed her first name from Fatemah to Yasmin.

2. On 14 November 2018, the Applicant lodged an application for Australian citizenship by conferral.[31] An Australian friend helped her by telling her what information the form required, e.g. name, address etc.[32] The Applicant recorded her first name as Yasmin. In response to the question whether she had been known by any other names, she wrote Fatemah and her real surname, and she wrote that she had been called Yasmin from birth.[33] While it is significant that she disclosed the name Fatemah, the information she provided did not convey that Fatemah had previously been her legal name.

   [31] Exhibit T1 – Section 37 T-documents, T4.

   [32] Transcript, page 6, lines 6 to 33.

   [33] Exhibit T1 – Section 37 T-documents, T4.

3. The application form asked the Applicant to list immediate family members. She did not disclose the brother she had previously claimed was missing or MM. It is not apparent why she failed to disclose those people.     

4. On 22 August 2019, the Respondent asked the Applicant for her Iranian national identity card and an explanation as to why “Fatemah” was never mentioned as an alias at any time during her application for a protection visa.[34] In response, the Applicant provided her birth certificate and wrote the following:

   “…I am writing to explain why I legally changed my given name. I changed my name from Fatemah to [Yasmin] because my name was Fatemah only on my birth certificate, and no one ever called me Fatemah, and since childhood, everyone has been calling and knowing me by the name of [Yasmin]. And I was also more interested in the [Yasmin], So I legally changed the name of Fatemah to [Yasmin]”.[35]

   (Errors in original)

   [34] Exhibit T1 – Section 37 T-documents, T6.

   [35] Exhibit T1 – Section 37 T-documents, T7.

5. She did not explain why she had previously failed to disclose Fatemah or reveal that she had previously applied for a short-stay visa in the name Fatemah.  

6. The Applicant’s father and the brother she claimed was missing live in Iran. There is evidence before me from her father and a Persian media group[36] that in Iran it is not possible for a person called Fatemah to change her name because of its prevalence and religious significance. I accept this.

   [36] Exhibit T1 – Section 37 T-documents, T22, pages 158 to 160.

7. On 27 September 2019, the Respondent asked the Applicant again for her Iranian national identity card and any Iranian documents showing use of the name Yasmin. She claimed to have no other documents to provide because she lost her “ID”.[37] She later said the only documents that would have her name as Yasmin were birthday cards.[38]

   [37] Exhibit T1 – Section 37 T-documents, T9.

   [38] Exhibit T1 – Section 37 T-documents, T13, page 66.

8. I am prepared to accept that the Applicant was informally known as Yasmin in Iran at least in some circles and that she was unable to change her name while she was in Iran.     

9. On 7 January 2020, the Applicant was invited to comment on multiple discrepancies in her personal information. These discrepancies included that there had been a short-stay visa application in the name Fatemah and that she had used the first name Yasmin since her arrival in Australia.[39] In response, the Applicant provided an amended Form 80 in which she listed the names Fatemah and Yasmin, and she disclosed the short-stay visa application and the trip to Thailand. She also wrote a letter[40] in which she said:

   “I did not mention ‘Fatemah’ being my official name when I have entered to Australia and in my application for protection visa. But after knowing that it was illegal to give wrong information about my identity and as a worse thing to do in Christianity, I am very sorry for my silly mistake…”

   [39] Exhibit T1 – Section 37 T-documents, T10.

   [40] Exhibit T1 – Section 37 T-documents, T13, page 68.

10. She also indicated that:

    ·Her first marriage was unhappy, RZ made the decisions and she became submissive;

    ·She had not known what type of application was lodged or been aware of the “documents fabricated for our Australian visas and information given to the Australian government on our behalf” as it was all done on their behalf and she was not told about the details;

    ·RZ made a plan to migrate to Australia and she had to go along with it. She was afraid to be away from her family so her mother came along;

    ·RZ had not realised they needed “a case” to be accepted into Australia and the people smugglers guided him about what to tell Australian immigration officials to be accepted as refugees. They were told to change their names “a little bit” and not disclose the previous visa application;

    ·She had always lived as a honest person and that it was very hard for her to lie about her identity, but they were told that if they did not lie to conceal that they had previously applied for a visa, they would be sent back to Iran and straight into a prison. She followed RZ’s order “as I was very fearful of being sent back to Iran and going to jail there which I knew could be equal to being harmed, tortured and even raped as I have heard about happening to every woman goes to prison in Iran”;

    ·Not declaring her real name always felt heavy on her shoulders and “challenging with my faith and conscious” but she did not “have the guts” to correct her identity information because she was worried that her children would be deported to Iran with her;

    ·Before lodging her citizenship application she realised she could not “hide the truth anymore” so she made enquiries about how to “rectify the problem”, confessed in her church, and enquired with the registry of Births, Deaths and Marriages about changing her name from Fatemah to Yasmin;

    ·After receiving her certificate of name change, she was able to apply for citizenship using her correct name without having to lie that her name was Yasmin;

    ·When she applied for citizenship she was not asked about past visa applications, so she did not disclose the previous application;

    ·After changing her name she lived in peace as she was living with her correct identity until the Department contacted her; and

    ·She needs citizenship for her children to be citizens and to sponsor MM for permanent residency as he is on a Safe Haven Enterprise Visa SC 790 and she came as an illegal maritime arrival.

11. In the hearing, the Applicant said she always feared RZ and she had to do what he told her. He would tell her to sign here and sign there and she was not allowed to ask what she was signing.[41] It is not difficult to accept that an Iranian Muslim male could wield control over his young Iranian Muslim wife in Iran. In addition to the protection order made in 2014, I have read a police report describing violence by RZ towards MM in 2020 and an application for a protection order that alleged that RZ was regularly violent to the Applicant when they were together. I am inclined to accept that the Applicant went along with RZ in the context of a coercive relationship, and that she probably had very little, if any, knowledge of the application for a short-stay visa. I also have no difficulty accepting that RZ was told by a people smuggler to tell a fake story and conceal the application for a short-stay visa.

    [41] Transcript, page 19, lines 1 to 23; page 28, line 35 to page 29, line 13.

12. However, after getting a protection visa the Applicant clearly felt at liberty to break up with RZ, have almost no contact with him, and marry someone else, i.e. she was not under his control from that time on. It would perhaps be understandable if she had wanted to put the whole sorry episode concerning her entry to the Australian community behind her, and live an honest life going forward. However, that is not what she did. She sought to gain the benefit of Australian citizenship without being completely honest about her identity and past. The Respondent submitted that it was only after adverse information was put to the Applicant in January 2020 that she admitted to having previously provided false and misleading personal information. I accept that submission and I would add that even then, I do not think she was completely honest about that. There are some aspects of her explanation that I find questionable.   

13. I find it difficult to believe that the Applicant was afraid that she would be sent to prison if returned to Iran. There is no evidence in any of the material relating to her arrival on Christmas Island and her efforts to obtain a visa that she expressed any fear of that or made any enquiries with immigration officers about it. She had only recently flown to Thailand and returned to Iran without incident.   

14. Another concern is that the Applicant indicated that she legally changed her name because she could not “hide the truth anymore” and wanted her legal name to match the name she was known by. However, changing her name did not reveal the truth. It merely enabled her to correctly identify herself as Yasmin in all future dealings with the government. On her citizenship application, she disclosed Fatemah as a name she had been known by, which looks like an attempt to appear honest, however she did not indicate that Fatemah was previously her legal name. She did not take the opportunity to disclose and explain her previous dishonest conduct. Further, in 2019 when she was asked why she had not previously mentioned the name Fatemah, she did not reveal the short-stay visa application in that name and the fact that she had subsequently identified herself as Yasmin to avoid being connected to that application.[42]

    [42] Exhibit T1 – Section 37 T-documents, T7.

15. In the hearing I suggested to the Applicant that the change of name looked more like an attempt to cover up her previous use of the wrong name than an effort to reveal the truth, and I asked her to explain how she thought changing her name would put things right. She did not explain. She ultimately agreed that she changed her name because she liked Yasmin better and wanted to be legally known as Yasmin.[43]  

    [43] Transcript, page 54, line 44 to page 55, line 17.

16. I found the Applicant’s claimed fear that her daughters would be sent to Iran with her if she told the truth unconvincing given they all held Protection visas. She claimed to have heard of many visas being cancelled but she did not know the reasons.[44] 

    [44] Transcript, page 58, line 40 to page 59, line 11.

17. The Applicant, in her written explanation, repeatedly described her efforts to cheat the Australian immigration system as a “mistake”. A person of high moral standards who understands the importance of being truthful in communications with the Australian Government would not trivialise that behaviour.  

18. I did not think the Applicant was entirely honest in the hearing either. When asked about her failure to reveal the previous visa application, she said “Yes, because I haven’t personally ever applied for a visa to enter Australia…I had no idea, no information about it”. She claimed RZ told her not to say anything about her past “and I didn’t know what he has done, so I couldn’t say yes or no”. When it was put to her that in February 2020, she admitted that she had lied about her identity “for not matching our refused application”, which looked like she knew there was a previous visa application, she seemed to obfuscate and continued to claim she did not know anything about the application. Eventually, she admitted that RZ told her about the refused visa application on Christmas Island.[45] The protection visa application in which she said she had not previously been refused a visa, was made in Geelong, after the Applicant had left Christmas Island.

    [45] Transcript, page 31, line 5 to page 32, line 13.

19. When the Applicant was asked about her failure to reveal the trip to Thailand when she was interviewed on Christmas Island, she claimed not to have understood the question properly and not having sought to mislead.[46] However she was also asked this question on her Protection visa application and it was clearly stated as “Did you ever travel outside your home country or country of residence before your current journey to Australia?”, which could not be any clearer, and she also answered that in the negative. She had the help of a migration agent for that application.

    [46] Transcript, page 49, lines 7 to 16.

20. It was suggested on behalf of the Applicant that she was afraid to tell the truth to the Department because she was still living in fear of RZ even after they had separated, and that she was still afraid when she provided her statement in February 2020.[47] In the hearing, she claimed she was still fearful of RZ and she feared the department might tell him if she told the truth.[48] She did not say in her February 2020 letter that she was afraid that RZ might find out if she told the truth. Nor could she explain why she thought the Department might share information she gave them with RZ, and she said she did not think about asking the Department not to pass information on to RZ. When it was put to her that she did tell the truth in February 2020 despite her claimed fears, she said that was because MM was supporting her.[49]

    [47] Exhibit A2-1, page 2.

    [48] Transcript, page 41, line 25 to page 42, line 45.

    [49] Transcript, page 44, lines 1 to 24.

21. The Applicant claimed not to have known about the Protection Order made in 2014. A subsequent application for a Protection Order in May 2020 includes a handwritten note that there was a previous order that expired in 2016.[50] The Applicant said she had assistance from pro bono lawyers to complete that application and “I written it, but I - I do not know the meaning of it and I did not know if it is true or not, I couldn’t - I couldn’t tell”.[51] It is concerning that as late as May 2020, the Applicant signed an official document without knowing if its contents were true or not.

    [50] Exhibit A2-2.

    [51] Transcript, page 56, line 1 to page 57, line 10.

22. There is a certified copy of the previous order attached to or filed with MM’s police statement. It is dated 12 May 2020.[52] It may be that the police provided it to MM who provided it to the Applicant. Referring to the 2014 order, the Applicant said that after RZ assaulted her, the police gave her documents to take with her but her English was not good and she did not know what they were.[53]

    [52] Exhibit A2-1.

    [53] Transcript, page 63, line 1 to page 64, line 35.

23. I am prepared to accept that the Applicant was unaware of the making of the Protection Order in 2014. However, there is not any evidence that RZ attacked her or made any threats to harm her after he assaulted her in 2014. Nor is it plausible that she thought the Department would tell RZ about information provided by her. 

24. I have mentioned a police report and application for a Protection Order, both in 2020. For completeness I will summarise those. According to the police report, MM reported to them that on 11 May 2020, RZ came to the home he shared with the Applicant. The twin girls had been with RZ for a week and MM was home with the baby son he shared with the Applicant. RZ had refused to return the girls unless the Applicant gave him money. RZ asked where the Applicant was and physically assaulted MM, holding a paint scraper to his throat while he was holding the baby. He threatened to kill MM and the baby. RZ punched MM and left while threatening to kill MM.[54]

    [54] Exhibit A2-1.

25. On 13 May 2020, the Applicant applied for a Protection Order. In her application she said RZ used to abuse her regularly and she referred to his attack on MM. She said RZ was supposed to have the twins for only one day, he had refused to return them or tell her where he was keeping them and he demanded money from her. Bizarrely, she said she later discovered that her mother had been looking after the girls.[55] In the hearing, the Applicant confirmed that her mother had not told her where her daughters were.[56]

    [55] Exhibit A2-2.

    [56] Transcript, page15, lines 25 to 45.

26. In July 2020, a Protection Order was made listing the Applicant as the aggrieved and RZ as the respondent. No children were listed as protected persons.[57]

    [57] Exhibit A2-3.

27. The Applicant described her mother as a very simple or gullible person. She said everyone was against her and the only person who stood by her was MM. I asked why her mother had not provided a character reference, and she replied that she did not think it was necessary but that she was present and could give evidence.[58] However, her mother did not give evidence and I find it strange that the Applicant did not ask her mother to give character evidence given her mother’s first-hand knowledge of her and the circumstances under which they came to Australia. 

    [58] Transcript, page 10, lines 30 to 38; page 11, lines 1 to 18.

28. Other people, including the Applicant’s friend who helped her complete forms, did provide character references for the Applicant. These people know the Applicant through church groups that she and MM are involved in. One person has known her for eight years and another has known her for six years. MM also provided a letter of support. All these people spoke well of the Applicant, describing her as kind, consistent, encouraging, honest, an exemplary woman of faith, an asset to their community caring and sincere. I accept, based on these letters, that the Applicant is a valued member of the Christian communities that she is involved in, and that she is regarded very positively in those communities. This speaks well of her character. She is a mother and wife, clearly valued by MM. However, none of the references, except the one provided by MM, address the Applicant’s provision of false information to immigration officials and her failure to correct it of her own volition.

29. As a general principle, the prolonged deception of Australia’s immigration authorities weighs against an Applicant’s good character. While the Applicant’s initial deception was relatively minor compared to, say, a person who conceals a criminal record, it was still an attempt to cheat Australia’s immigration system. Further, due to the concerns I have set out above, I have some doubt about whether the Applicant was being completely honest with the Tribunal and whether she is truly able to distinguish right from wrong in her dealings with the government authorities. She has not yet demonstrated a prolonged period of ethical behaviour according to the rules and values of Australian society.

    CONCLUSION

30. At this point in time, there is enough doubt in my mind about the Applicant’s character that I cannot be satisfied that she is of good character. She may make another application in the future. MM appears to be a positive influence and the Applicant has expressed a commitment to living a good life according to Christian values. She may be able to demonstrate a prolonged period of honesty and integrity in the future.  

31. The decision under review is affirmed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

............................[SGD].............................

Associate

Dated: 29 May 2023

Date of hearing:

14 December 2022

Applicant:

Applicant’s migration agent:

By video conference

Mr Kourosh Momeni
Click Australia Pty. Ltd.

Solicitors for the Respondent:

Ms Hannah Laviano
Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 37 T-Documents (T1 to T28 paged 1 to 225)	R	-	25 January 2022
T2	Supplementary T-Documents (ST1 to ST8 pages 1 to 108)	R	-	3 May 2022
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 5)	A	7 September 2022	7 September 2022
A2	Applicant’s Evidence including: A2-1    Applicant’s Submission dated 26 April 2022 (8 pages) A2-2    DVO Application dated 13 May 2020 with supporting documents (16 pages) A2-3    Protection Order dated 15 July 2020 (1 page)	A	-	26 April 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to10)	R	1 November 2022	1 November 2022
R2	Bundle of documents provided by Respondent relating to Protection visa application (paged 1 to 126)	R	-	3 February 2023