Dolma and Secretary, Department of Home Affairs (Citizenship)

[2020] AATA 399

Dolma and Secretary, Department of Home Affairs (Citizenship) [2020] AATA 399 (3 March 2020)

Division:GENERAL DIVISION

File Number(s):      2018/0873

Re:Yangchen Dolma

APPLICANT

Secretary, Department of Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:3 March 2020

Place:Sydney

The decision under review, being the decision of the respondent dated 17 January 2018, is set aside and in substitution, the cancellation of the applicant’s approval for Australian citizenship is rescinded.

...............................[sgd]....................................

Deputy President B W Rayment OAM QC

CATCHWORDS

CITIZENSHIP – applicant found to be of not good character – dishonest with dealings with Department – alleged bogus documents provided to Department – incorrect information given to Department – whether applicant know documents were bogus – whether applicant genuinely believed documents were authentic – decision set aside and substituted

SECONDARY MATERIALS

<<中华人民共和国妇女儿童权益保护法>> [Maternal and Infant Health Care Law of the People's Republic of China] (People’s Republic of China) National People’s Congress, Order No 33, 27 October 1994.

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

3 March 2020

1. The applicant has sought review of a decision of the respondent to cancel her approval for Australian citizenship.

2. The cancellation stemmed from a delegate’s decision on behalf of the respondent that the applicant was not of good character. That is the issue before me. The approval granted for a child of the applicant was also cancelled as a consequence. However, the child’s approval would be reinstated if the applicant succeeds in this review.

3. The delegate mentioned two documents relied upon by the applicant that they found were bogus documents. Those documents were purported to be the applicant’s birth certificate and the certificate of her first marriage. Both were purportedly issued by Chinese authorities in Tibet. The delegate also relied upon incorrect information given by the applicant in documents that were signed by the applicant and provided to the department as part of various interactions between the applicant and the department.

4. The applicant does not dispute the incorrect nature of the information in the documents signed by her. However, she says that they were prepared by others and that she was unaware of the contents of the documents because she was illiterate and unable to read them.

5. There are also two issues about the allegedly bogus documents. The first is whether they were bogus, and the second is whether the applicant genuinely believed they were authentic.

6. I have also heard character evidence from several witnesses, including a person who mentored her in English. I was also in a position to give evidence as to her command of the language and ability to read at relevant times.

7. For reasons which follow, I have decided that the applicant is of good character and also that her evidence should be accepted so that the reviewable decision is to be set aside.

   THE BOGUS DOCUMENTS

   Birth Certificate

8. I start with the allegedly bogus documents, the originals of which I have inspected. The first is a certificate of her birth on 14 August 1966, with an issue date of 15 August 1966.

9. I accept the applicant’s evidence that she was in fact born in 1966.

10. She said that when she decided to leave Tibet, a relative gave her papers found in her home, which he said might assist her. She could not and did not read those documents and had no occasion to produce them until after she arrived in Australia in 2007. She did not know what the documents said. The birth certificate was among them.

11. The birth certificate form refers, in English, to the Law of the People’s Republic of China on Maternal and Infant Health Care. That law did not come into force until the 1990s.[1]

    [1]<<中华人民共和国妇女儿童权益保护法>> [Maternal and Infant Health Care Law of the People's Republic of China] (People’s Republic of China) National People’s Congress, Order No 33, 27 October 1994.

12. The applicant gave evidence that her father, who is still alive in Tibet, told her that when she was born, there was no birth certificate. He also told her that in the late 1990s, the authorities attempted to register the births of people born in remote areas and allowed local authorities to issue birth certificates. That explanation seems to account for the details included on the birth certificate. Although the birth certificate purports to be dated 1966, the form used did not exist then.

13. However, the document has the hallmarks of being issued on official stock current in the 1990s. There is nothing to suggest that the applicant knew of any reason to doubt the authenticity of the birth certificate, or any words printed or written on it.

14. Based upon the local knowledge of the applicant’s father, it may be that the birth certificate is one issued by the local authorities in the 1990s. Nevertheless, insofar as it purports to be dated 1966, it is shown to be false.

15. The Minister enquired about the authenticity of the document with the Health and Family Planning Commission of Sichuan Province (which includes Tibet). The Commission stated in a letter that the birth certificate “is non genuine”. The document is dated 23 April 2018 and does not state reasons for the conclusion. Unless the author was unaware of any practice of issuing birth certificates retrospectively, it is inconsistent with the information given to the applicant by her father.

16. Since I have accepted that the applicant knew of no reason to doubt the authenticity of the birth certificate, I do not find it necessary to make findings as to whether or not it is a bogus document. It is, in any event, apparently filled out on genuine government stock, and has been in the applicant’s possession since shortly before she left Tibet in 2003.  Her first husband, the father of her three children, had died in 2001.

    Marriage Certificate

17. The second allegedly bogus document is a purported marriage certificate having a photo of the applicant’s first husband and a younger photo of the applicant. It is in a red booklet with handwritten Chinese characters filled in and dated 8 December 1990. Again, it appears to be government stock. It resembles other marriage certificates except that it is filled out by hand rather than by machine printed or typewritten entries and does not have one heading completed at all.

18. In other marriage certificates put in evidence before the Tribunal, that heading is completed by adding a registered number, also printed by machine or typed. That irregularity might have occurred in a number of ways. For instance, the recorder might not have had the next number in sequence available when the document was prepared, and may perhaps have intended to fill it in later and neglected to do so. Whether that would make the document a false one may be doubted. It certainly looks like a marriage certificate and the photos do not suggest any deception.

19. The applicant said that she was shown the document in her home by her husband, who told her that it was a certificate or token of their marriage. She was, of course, present at the marriage ceremony. She did not read Chinese and had no reason to doubt its authenticity.

20. I also accept that before she came to Australia she had never used either the birth certificate or the marriage certificate, either in Tibet, Nepal or India. She knew of no suggestion that the documents or either of them were incorrect before the Minister gave notice of intention to cancel her approval for Australian citizenship.

    DEALINGS WITH THE DEPARTMENT

21. Some of the various documents signed by the applicant as a part of dealing with the Department, for her own and her children’s visa applications, contained errors. These relate to the applicant’s date of birth, date of marriage and family composition.

22. When the applicant left Tibet to travel to India, she travelled through Nepal with two of her children and other relatives. She went to a refugee camp in Nepal. There, she was put in touch with a Tibetan organisation who gave advice to Tibetans on their way to India. They advised her that she should show her age as ten years younger than her actual birth date because that would make it easier to obtain benefits in India, including education. The advice was, I gather, commonly given by the Tibetan organisation to refugees from Tibet and others also followed the advice, no doubt in reliance on the Tibetan organisation. Thus, her entry visa into India included the information that she was born in 1976, not 1966.

23. She met a man who became her second husband in Nepal and they married in India. It was explained to me that, at the time, Tibetan custom allowed the husband to control the affairs of the wife. At the insistence of the husband, she signed a visa application to come to Australia that contained false information she was quite unaware of. The false information was that she had no children and that her date of birth was 1976, consistent with her Indian entry visa.

24. The second husband, who has now died, was apparently at odds with the applicant about her wish to sponsor her children to come to Australia. They separated and that may have been part of the reason. The applicant herself sponsored the children to come to Australia and for that purpose she disclosed the true facts to the department in all respects. She produced the 1966 birth certificate, her marriage certificate and a number of other documents including a letter from the Australian representative of the Tibetan government in exile.

25. The children arrived here.

    OTHER CHARACTER EVIDENCE

26. I heard from Dr Geoffrey Thomas, a dentist and his wife Mrs Ursula Thomas. Mrs Thomas has been mentoring the applicant for the past twelve years. She and her husband know the applicant well.

27. Dr Thomas is aware how hard she works. She works as a cleaner in nursing homes and elsewhere. He said she always greets Mrs Thomas with respect, calling her teacher. He also said that she supports the Tibetan community. Dr Thomas described her as a wonderful ethical lady who has brought up her family very well.  She has a key to their house to look after the Thomas’ house when they are on holidays. He said she embodies Australian ethics and principles to the nth degree.

28. Mrs Thomas explained that the applicant’s English was non-existent when she first met her. She said that she has been to Tibetan functions with her and the applicant and her family have been to the Thomas’ home for festivities and on camping trips with them. Mrs Thomas said that her moral qualities and her kindness and positive contributions to Australia are just amazing.

29. I accept all the evidence of the applicant including that she has never sought to be other than truthful in all her dealings with the department. 

    DECISION

30. In light of the above, I accept that the applicant has been honest with her dealings with the Department and is of good character. Therefore, the reviewable decision will be set aside and in substitution the cancellation of the applicant’s approval for citizenship will be rescinded.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

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Associate

Dated: 3 March 2020

Date(s) of hearing:	14 and 15 January 2020
Solicitors for the Applicant:	Immigration Advice & Rights Centre
Solicitors for the Respondent:	Sparke Helmore Lawyers