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

[2022] AATA 4276

Embaye and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 4276 (13 December 2022)

Division:GENERAL DIVISION

File Number:          2022/1907

Re:Nebiyt Embaye

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Member S Barton

Date:13 December 2022

Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 17 February 2022 which refused a grant of Australian citizenship under s 24(1) of the Australian Citizenship Act 2007 (Cth), is affirmed.

..........[Sgd]..............................................................

Member S Barton

Catchwords

CITIZENSHIP – refusal of application for Australian citizenship by conferral – whether Tribunal is satisfied of Applicant’s good character – Applicant failed to declare having a child – Applicant failed to advise the Department that her second marriage ceased – Applicant has provided inconsistent information – Reviewable Decision affirmed  

Legislation

Australian Citizenship Act 2007 (Cth) – ss 24, 24(1), 21(1), 21(2), 21(2)(h), 52(1)(b)

Cases

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

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Secondary Materials

Department of Home Affairs, Revised Citizenship Procedural Instructions CPI 15 – Assessing Good Character under the Citizenship Act (2021) – paras 3.1, 3.3, 4, 6

REASONS FOR DECISION

Member S Barton

13 December 2022

INTRODUCTION

1. The Applicant seeks review of a decision of a delegate of the Respondent dated 17 February 2022 to refuse the Applicant’s application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The delegate refused the application on the basis that the Applicant did not meet requirements under s 21(2)(h) of the Citizenship Act at the time of the decision.

   BACKGROUND

2. The Applicant, a citizen of Ethiopia, arrived in Australia on 8 June 2012 as a holder of a Partner (Provisional) (Subclass 309) visa (T4/32).

3. On 18 December 2013, the Applicant was granted a Partner (Permanent) (Subclass 100) visa (T18/79; T4/28).

4. On 27 November 2020, the Applicant applied for Australian citizenship by conferral (T4/11-36), and included her daughter, Ms A, in the application (T4/14).  

5. On 12 February 2021, the Applicant completed an interview with standard test at the Department of Home Affairs (the Department).

6. On 18 February 2021, the Department requested further information in relation to the Applicant’s daughter, specifically whether the Applicant was Ms A’s responsible parent in circumstances where the Applicant stated in her interview that Ms A did not reside with her (T7/48).

7. On 23 February 2021, the Applicant withdrew Ms A from her citizenship application (T8/50).

8. On 21 October 2021, the Applicant was invited to comment on adverse information before the Department concerning whether she satisfied the good character requirements under s 21(2)(h) of the Citizenship Act (T13/59-65). The following categories of adverse information were identified by the Department: false or misleading information during the Applicant’s visa application, the Applicant’s interaction with the Western Australian (WA) Department of Communities, entering into a bogus marriage and the Applicant’s outstanding debt to the Commonwealth.

9. On 17 February 2022, a delegate of the Minister refused the Applicant’s application for citizenship in accordance with s 21(2)(h) of the Citizenship Act, because the Applicant was assessed as not meeting the character requirements. This is the Reviewable Decision before the Tribunal.

10. On 8 March 2022, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the Reviewable Decision.

    JURISDICTION

11. The application for review was made in accordance with s 52(1)(b) of the Citizenship Act which allows the Tribunal to review decisions made under s 24 of the Citizenship Act. The Tribunal is satisfied that it has jurisdiction to hear this application.

    ISSUE

12. The issue to be determined by the Tribunal is whether the Applicant satisfies the character requirements for the purposes of s 21(2)(h) of the Citizenship Act.

    MATERIAL BEFORE THE TRIBUNAL

13. The hearing took place on Wednesday 12 October 2022. The Applicant was self-represented and the Respondent was represented by Ms Elle Tattersall of Sparke Helmore Lawyers.

14. The Applicant gave oral evidence and was cross-examined. The Respondent made oral submissions.

15. The Tribunal admitted the following documents into evidence at the hearing:

    (a)Applicant’s bundle of documents, filed 18 May 2022 (Exhibit A1);

    (b)Applicant’s further bundle of documents, filed 20 June 2022 (Exhibit A2);

    (c)Applicant's National Police Certificate, dated 17 June 2022 (Exhibit A3);

    (d)Section 37 T-Documents, labelled T1-T20, consisting of pages 1-124, filed 5 April 2022 (Exhibit R1);

    (e)Supplementary T-Documents, labelled ST1-ST7, consisting of pages 1-240, filed 15 July 2022 (Exhibit R2); and

    (f)Respondent’s Statement of Facts, Issues and Contentions, dated 15 July 2022 (Exhibit R3).

    RELEVANT LEGAL PRINCIPLES

16. Section 21(1) of the Citizenship Act provides that “[a] person may make an application to the Minister to become an Australian citizen”.

17. From 1 January 2019, the Citizenship Policy, Department of Immigration and Border Protection is being systematically replaced by the Revised Australian Citizenship Procedural Instructions (Revised Instructions) which provide guidance on the application of the “good character” requirement relevant to assessing an applicant’s application for Australian citizenship by conferral. CPI 15 – Assessing Good Character under the Citizenship Act (CPI15) is the Instruction relevant to this application.

    Character

18. A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Citizenship Act, as follows:

    (2)   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

    (c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

    (d)understands the nature of an application under subsection (1); and

    (e)possesses a basic knowledge of the English language; and

    (f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

    (g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

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

    (Emphasis added.)

19. Good character is not defined in the Citizenship Act. The Tribunal is guided by CPI15, mentioned above, in its discussion of this requirement.

20. Paragraph 3.1 of CPI15 states:

    Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.

    This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:

    ·     consider any character issues that arise on the facts of a case;

    ·     consider all relevant information;

    ·     guard against bias;

    ·     be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;

    ·     be mindful that a person who may not have been of good character can become a person of good character;

    ·     continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.

21. Relevantly, paragraph 3.3 of CPI15 states:

    The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):

    Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion... 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.

    The phrase ‘enduring moral qualities’ encompasses the following concepts:

    ·     characteristics which have endured over a long period of time;

    ·     distinguishing right from wrong; and

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

    The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.

    A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.

    Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.

    For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, DP Breen discussed the role of the character requirement in a citizenship application (at [8]):

    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, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn 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.

22. Paragraph 4 of CPI15 provides a list of characteristics that may be expected from someone of good character, it states:

    As a general proposition, a person who is of good character would:

    ·     respect and abide by the law in Australia and other countries;

    ·     be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);

    ·     not practise deception or fraud in dealings with the Australian Government, or other organisations, for example …

    ointentionally providing false personal information …

    …

    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.

23. Also of relevance in this matter is paragraph 6, which states:

    The citizenship character assessment is informed by the applicant’s conduct prior to applying for a visa and during their time in Australia. It is an assessment of all the available information, including any information provided in the visa application process and while the applicant has been a visa holder in Australia and during the processing of the citizenship application.

    EVIDENCE

24. As detailed above, on 27 November 2020, the Applicant applied for citizenship by conferral, including her eldest daughter in her application (T4). The Applicant subsequently requested that her daughter be withdrawn from the application for Australian citizenship (T8/50).

25. On 21 October 2021, the Department wrote to the Applicant inviting her to comment on adverse information namely: provision of false or misleading information during her visa application; her interactions with the WA Department of Communities; entering into a bogus marriage and outstanding debt to the Commonwealth (T13).

26. On 15 November 2011, the Applicant lodged an application for a partner visa sponsored by her then husband. She was asked in this form if he she had any children, to which she answered ‘N/A’. In an interview with the Department in Sudan on 23 February 2012, she also stated that she had no children or dependents (T13/60-61).

27. The Department noted, however, that on 17 March 2015, the Applicant lodged a visa application on behalf of her biological daughter, Ms A, born 14 September 2006 (T13/61).

28. The Department noted that the same daughter was in the care of the WA Department of Communities.

29. On 29 July 2016, the Applicant applied to sponsor her second husband to migrate to Australia on a partner visa, confirming that they had a mutual commitment to shared life as husband and wife to the exclusion of all others. On 30 April 2018, the Applicant gave birth to a second child having commenced a relationship with the father of that child as early as April 2017, nine months after she sponsored her second husband’s migration to Australia (T13/61).

30. The Applicant also had an outstanding debt of $1687.74 to the Commonwealth, having received Centrelink payments and Asylum Seekers Assistance Scheme payments at the same time (T13/61).

31. The Applicant responded to the invitation to comment on adverse information in correspondence dated 22 October 2021, 23 October 2021 and 25 October 2021. The Applicant stated that she could not have told her first husband that she had a daughter, Ms A, or he would not have married her and that she was focused on building a better life in Australia. Moreover, she stated that the relationship with her second husband ended because of the stress his brother, visiting from New Zealand, caused her (T14). The Applicant also provided what purported to be English translations of Ethiopian divorce papers (T15). The Applicant also stated that she was committed to repaying the debt and that her marriage was not fake (T14).

32. On 17 February 2022, the Department advised the Applicant that her application for Australian citizenship had been refused because she did not satisfy the good character requirements under s21(2)(h) of the Act.

33. The Tribunal notes that the outstanding debt was repaid by the Applicant on 28 October 2021 (A1).

34. The evidence relating to the provision of false or misleading information during her visa application; the alleged bogus marriage and her interactions with the WA Department of Communities are explored in detail below.

    Visa application

35. Throughout the Applicant’s partner visa application, she stated on a number of occasions that she did not have any dependents, including on her refugee card (ST1/36, 41). The Applicant, born in Ethiopia, states that she fled to Sudan in late 2006. In a statement provided to the Department, the Applicant said (ST2/77):

    When I travelled to Sudan, I did not tell anyone about my daughter because a) no one asked me b) I was concerned that they would return me to Ethiopia if they knew I had a dependent child. When I applied for my visa to Australia, again I was not asked and I did not tell anyone of my child. If they had asked, I do not know what I would have said. I did not tell my husband about my child, and I believe he still does not know, nor does any of my family. Part of the reason that I did not tell Australian officials about my child was that I feared that if my husband found out he would not marry me.

36. In a statutory declaration dated 18 May 2022, the Applicant stated that if she had told her husband that she has a child he would not have been able to marry her. She also stated that her husband had filled out all the relevant forms (A1).  It is noted that in her application for her daughter’s visa, the Applicant provided the name and contact details of the father of the child (ST/128, 131).

37. There is also some confusion as to the date of her eldest daughter’s birth. The WA Department of Communities noted in October 2021, that testing confirmed the child was born in a different year to that provided by the Applicant in her daughter’s visa application (ST3/98, ST6/219). The Applicant has stated that the date of issue on the daughter’s birth certificate used the Ethiopian calendar (A2). The Ethiopian calendar is approximately seven to eight years behind the Gregorian calendar - this does not clarify the uncertainty regarding the date of birth.   

38. It is also noted that the father’s date of birth provided on the child’s birth certificate (A1), differs from his national identity card provided by the Applicant in support of her daughter’s visa application (ST3/131).

39. By her own admission, the Applicant was not truthful when she failed to disclose that she had a daughter. It is the Applicant’s contention variously, that she was not asked if she had any dependents, that she feared she would not be able to marry if her then husband knew she had a daughter and that her then husband filled out all the forms.

40. The Respondent has stated that the Applicant’s actions ‘appear to be motivated by achieving particular visa outcomes’ (R3/8).  

    Bogus marriage

41. The Applicant subsequently divorced her first husband, and on 29 July 2016, sponsored a partner visa for a second husband, whom she stated she married in November 2015, having first met in 2010 and committing to a relationship at the exclusion of all others in October 2014 (ST4/135).

42. The Applicant did not declare this partnership, as it then purported to be, in her visa application for her child in 2015.  

43. On 30 April 2018, the Applicant gave birth to a second child, the father being a Western Australian resident, born in Ethiopia. The father stated that he met the Applicant in April 2017, and they commenced a relationship soon afterwards (ST4/165-166).

1. At no point did the Applicant advise the Department that her relationship with her second husband had ended. The Applicant said during the hearing (transcript/27):

   Yes, 2017 I have finish it with him [second husband], and I asked have seen another friend.  So already 2018 I have got a baby, [Ms H].  So that was different.  I didn’t tell the immigration, you’re right, but situation has been so - I have told him openly and the committee will be finalising the things, but they delayed.  And they was aware 2017.

2. According to the Applicant, the relationship broke down due to her husband’s brother (transcript/26):

   Yes, when I was just struggling with his brother here and with my daughter, and the things was not going very well.  I was frustrated and I told my family, my sister, “This things is not going very well and I am being pushed by his brother, so I don’t want to continue”.  I told her, my sister, and it took a long time until they say that (indistinct) there and the - the village, it takes a long time.  When I give delegation to my sister to finalise the case.

3. The Applicant has not provided a reasonable explanation as to why the relationship ended and, more importantly, why she did not advise the Department that she was no longer in a relationship.

   Interactions with the WA Department of Communities

4. The Applicant’s first child was taken into the care of the WA Department of Communities on 20 August 2016, the Department sought a protection order because (ST/185):

   … there is reason to believe that [the child] would continue to be emotionally and physically harmed while in [the Applicant’s] care. [The Applicant] has consistently put her own needs above those of [the child] and shown no insight into how her behaviour impacts on [the child]. This is evident by [the Applicant];

   -    Not being able to acknowledge that she is mentally unwell or understand how her mental health and behaviour can have a negative impact on [the child]…

   -    Physically harming [the child] when she feels stressed and overwhelmed...

5. The Applicant reportedly had held a knife to her child’s throat and threatened to kill her and subsequently cut her fingers (ST6/184).

6. The Applicant disputes this account, stating that (transcript/21):

   That’s not true.  That’s very hurt me that they don’t have true evidence.  This is - that time she was going to the camp.  And then if I hit her that time, why she didn’t tell her to - to her (indistinct)?  And she was doing her breakfast and it happened accident.  It’s very small one.  It’s not cutting by someone.

7. The Applicant also stated that her daughter had been brainwashed and case workers had ‘twisted everything’ (transcript/17).

8. Following the birth of her second child, the WA Department of Communities took that child into care for a period of two years (ST5/169). The child is now living with the Applicant. The Applicant by her own admission, sought to hide her pregnancy from the WA Department of Communities, also stating (transcript/28):

   They didn’t ask, and then even me, I don’t know if I have to tell them or no…

   Other matters

9. The Respondent has also referred to an incident that occurred between the Applicant and a co-worker in August 2019 (R3/13). According to an incident report by the WA Police Force, the Applicant verbally abused and threatened to kill the victim, she then grabbed the victim by the collar and pushed her head in the bonnet of her car (ST7/224).

10. The Applicant has denied this account, stating (transcript/40):

    I wasn’t know what happened because I just - we finished 9 o clock she was, you know, inside.  She was calling me, you’re meant to have something, and when we were outside, I just spoke to her like a friend, because I have to start work 9.45, night shift, it was Friday night.  And I don’t know how she came back and she reported, because the park is far away from our work place.  I don’t know why she did, and if I say I will kill you, and in the morning, she was working with - because she came to morning shift at another place, I swear she’s working at another place too, and she was working always with me.  And I was surprised, I was not until now, until you send it to me, the form, I wasn’t know.  Because no police, nothing give to me, and nothing she said.  Because when her cousin passed away, I went to her house, and when she have car accident I went to her house. 

11. The Respondent has also drawn attention to discrepancies in the names and dates of birth the Applicant has provided for her mother, two sisters and two brothers (R3/12). The Applicant has provided two different spellings of her mother’s name and three different dates of birth for her mother in her interactions with the Department (ST2/52, ST1/5, T4/33).

12. The Applicant in the hearing was unsure of the dates of birth of her siblings, stating that most did not know their own birthday and it was not documented in their country (transcript/33).

    CONSIDERATION

13. As noted above, CPI15 states that a person of good character would ‘not practise deception or fraud in dealings with the Australian Government, or other organisations, for example …intentionally providing false personal information …’.

14. On several occasions, the Applicant has provided false or misleading information to the Department, the most significant being the omission to declare that she had a child and the failure to advise the Department that her relationship with her second husband had ceased.

15. Her explanations for not declaring having a child in 2011 are, to a certain extent, plausible: that is, the fear of disclosing the child would have potentially prevented her from marrying her first husband. This is not to excuse this omission, but to note that there would potentially be a reason for the Applicant to do so. However, there is such a degree of uncertainty surrounding the Applicant’s child, for example her date of birth and the status of the father, that this account must be viewed in its broader context, notably the visa application for her second husband. This gives weight to the Respondent’s contention that the Applicant is motivated by achieving particular visa outcomes, and there is sufficient doubt as to the Applicant being of good character.

16. Of less concern are the inconsistent dates of birth for her mother and siblings and the variations of spelling for her mother’s name which were provided by the Applicant. While there is an absolute requirement to provide truthful information, the Tribunal is mindful that Western society’s recording of dates of birth is not a universal practice. Additionally, there can be some variations in the spelling of names, due in part to translation. In of itself, the Applicant’s omissions in this regard arguably display a cavalier attitude to the provision of information, rather than one motivated by deception.

17. With respect to the Applicant’s violence towards her daughter and her subsequent interactions with the WA Department of Communities, her lack of awareness and insight into these events are troubling. Having had a child taken into care should not, in of itself, suggest that someone is not of good character. It is accepted that people can reform and be rehabilitated. This is explicitly recognised in CPI15 where it makes references to ‘expressions of genuine remorse’ and time elapsed since past wrong doing. However, such expressions of remorse are absent from the Applicant’s account of her interactions with the WA Department of Communities and indeed her response to the alleged incident with her co-worker.

18. The response of the Applicant has been to deny events that have occurred or to blame others, for example, the case workers.

    CONCLUSION

19. Taken together, the false information and omissions, the acts of violence towards her daughter and the failure to express remorse, create sufficient doubt that the Applicant is of good character.     

    DECISION

20. The Reviewable Decision, being the decision of a delegate of the Respondent dated 17 February 2022 which refused a grant of Australian citizenship under s 24(1) of the Citizenship Act, is affirmed.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of

...............[Sgd].........................................................

Associate

Dated: 13 December 2022

Date of hearing:	12 October 2022
Applicant:	In person
Solicitors for the Respondent:	Ms E Tattersall, Sparke Helmore Lawyers