FRLG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 1660

FRLG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1660 (14 June 2022)

Division:General Division 

File Number(s):2021/5212      

Re:FRLG  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:14 June 2022  

Place:Sydney

The reviewable decision made by the delegate of the Minister on 21 July 2021, to refuse the Applicant’s application for Australian citizenship will be affirmed.

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

Deputy President J W Constance

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship application – whether the applicant is of good character – where the applicant has provided false or misleading information – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24

CASES

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

Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634, 645

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Deputy President J W Constance

14 June 2022 

INTRODUCTION

1. The Applicant applied for Australian citizenship by conferral on 6 December 2019. On 21 July 2021, a delegate of the Minister refused the application on the basis that she had not established that she was of good character at that time. The Applicant has applied to this Tribunal to review the delegate’s decision. I will refer to this decision as the reviewable decision

2. For the reasons which follow the decision under review will be affirmed.

3. Unless stated otherwise, findings of fact in these reasons are based on the evidence of the Applicant.

   BACKGROUND

4. The Applicant was born in Iraq and is a citizen of that country. She is 72 years old. In 2011, following the death of her husband and of her nephew, she left Iraq and travelled to Turkey.

5. In 2011, whilst in Turkey, the Applicant was assessed to have special needs by the United Nations High Commissioner for Refugees (the UNHCR):

   Woman At Risk Case: The Applicant is an a lone widowed woman without a man protection and she has no one remaining in Iraq to take care of her after her husband and nephew's death. She would face financial and protection problems particular to her gender if she returns to Iraq.

   Resettlement should be considered for woman-at-risk who face precarious security or physical protection threat as a result of her sex, have specific needs arising from past persecution and/or traumatization, face severe hardship resulting in exposure to exploitation and abuse, or lack of access to traditionally available support and protection mechanisms……[1]

   [1] Exhibit R1 at ST2/172.

6. The Applicant migrated to Australia in March 2012 as the holder of a Sub-class XB-204 (Woman at Risk) visa.  She has resided in Australia since.  She has a son living in Australia and a daughter living in Turkey.

7. The application for citizenship under consideration in these proceedings is the second such application made by the Applicant.  Her first application was made in 2016 (the 2016 application).  It was refused on the same ground as the application under consideration.

   ISSUE FOR DETERMINATION

8. The issue for determination is whether, at the time of my decision, the Applicant is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).

   LEGISLATION

9. Applications for conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth) (the Act).  Section 24 of the 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).

10. Section 21(2) of the Act establishes the requirements for eligibility of the grant of citizenship. It provides in part:

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

    …

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

11. This is the only subsection that is in issue in the present application. As the Tribunal stands in the shoes of the decision-maker, these requirements of the law are applicable to the decision that I must make.

    CITIZENSHIP PROCEDURAL INSTRUCTION 15

12. The Citizenship Procedural Instructions have been issued by the Minister “to identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship under the Australian Citizenship Act 2007”.[2]

    [2] Clause 1.

13. The purpose of Citizenship Procedural Instruction 15 (the Instruction), an Instruction relevant to the determination of this application, “is to give guidance to decision-makers on the meaning of ‘good character’ in the context of making a decision under the Act.” [3]

    [3] At clause 3.1.

14. The Instruction refers to the following extract from the judgement of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[4]

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

    [4] (1996) 68 FCR 422 at 431-432.

15. Clause 3.3 of the Instruction provides, in part:

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

    ocharacteristics which have endured over a long period of time;

    odistinguishing right from wrong; and

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

16. Clause 4 provides, in part:

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

    orespect and abide by the law of Australia and other countries;

    ………………..

    onot practise deception or fraud in dealings with the Australian Government, or other organisations, for example ………. intentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications .....

17. Under the heading Weighing up the evidence, clause 14.2 provides, in part:

    Decision-makers should consider the following matters:

    oWould a person of good character behave the way the applicant did?

    oWhat evidence is there to demonstrate that the applicant has upheld and obeyed the law?

    oHas the applicant behaved in accordance with Australia’s community standards, such as obeying the law?

    oDoes the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?

    oHas the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?

    oAre there any other factors that are relevant to an assessment of the applicant’s character?

18. The Instructions reflect government policy and are not binding on the Tribunal. However, the Tribunal should apply government policy unless there are “cogent reasons to the contrary”.[5] I am satisfied in this matter that there are no reasons why I should not apply it.

    [5] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634, 645.

19. In considering the Instruction I have taken into account that they refer to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[6] in which the Tribunal said:

    In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.

    [6] [2011] AATA 304 at [120].

    FACTS

20. I am satisfied of the facts set out in the following seven paragraphs on the balance of probabilities.  Unless stated otherwise I have made the findings based on the evidence of the Applicant.

21. In her application for a Woman at Risk visa, submitted to the Department in March 2011, the Applicant declared that:

    (i)she had not been previously legally married, in a de facto relationship or in a customary/traditional/religious marriage that is not legally recognised[7];

    (ii)she did not have children from a previous marriage/relationship, including customary/traditional marriage[8];

    (iii)she did not have any non-dependent children[9];

    (iv)she had a niece named [redacted] living at a specified address in Australia[10].

    [7] Exhibit R1 at ST2/184.

    [8] Exhibit R1 at ST2/184.

    [9] Exhibit R1 at ST2/187.

    [10] Exhibit R1 at ST2/191.

22. In October 2011, prior to the grant of the visa, the Applicant was interviewed by a Departmental Officer.  At the commencement of the interview the Applicant was warned that it was an offence under the Migration Act to provide false or misleading information during the interview.  Notwithstanding this, she did not inform the Officer that she had two adult children when asked as to the complete composition of her family, including children.[11]

    [11] Exhibit R1 at ST2/214-217.

23. On 8 November 2016 the Applicant completed an incoming passenger card on her return to Australia following an overseas trip.  In that form she nominated her son, who she stated was living at an Australian address, as her emergency contact.[12]  In March 2018 and again in August 2018, the Department asked her to comment on this apparent inconsistent information.  The Applicant did not provide an explanation.

    [12] Exhibit R1 at T12/109.

24. In January 2019 the Applicant provided to the Department a Declaration of Service (Form 1399)[13] which she completed with the assistance of a registered migration agent.[14]  Above the Applicant’s signature on the form was a paragraph headed:

    WARNING: Giving false information is a serious offence. 

    The paragraph included the following:

    • For visa applicants:

    - I understand that any information that is false or misleading may

    result in the consideration of refusal of my visa application or, if I

    hold a visa, the consideration of cancellation of my visa.[15]

    [13] Exhibit R1 at ST3/253.

    [14] Exhibit R1 at ST3/260.

    [15] At ST3/260.

25. The Applicant did not inform the Department that she had two children at the time she submitted this form.

26. On 22 January 2019 an Officer of the Department spoke to the Applicant by telephone.  During this conversation, the Applicant informed the Officer that she had no children to declare.[16]

    [16] Exhibit R1 at T12/109.

27. When the Applicant applied for citizenship in December 2019 she disclosed to the Australian Government that she had two children, a son born in 1978 and a daughter born in 1986.[17]

    [17] Exhibit R1 at 61; see response to question 30 at 65.

    Further evidence of the Applicant

28. The Applicant provided a Statutory Declaration made 17 July 2021[18] and gave evidence at the hearing.

    [18] Exhibit R1 at 121.

29. The Applicant was born in 1950 in Iraq. She has two children, a son aged 44 and a daughter aged 36.  Her son is an Australian resident.

30. In 2008 the Applicant’s husband died.  She has not remarried.

31. When she was living in Iraq, the Applicant cared for a nephew from the time he was two years old.  He was like a son to her.  Her nephew was executed in Iraq in 2011 as a result of his working as an interpreter with coalition forces.  He was shot in the head and the Applicant was required to identify his body.

32. The Applicant was traumatised by the killing of her nephew which caused her to suffer severe and continuing depression and anxiety.

33. When she completed her application for a Woman at Risk visa in 2011, the Applicant had no English language skills and relied upon another refugee in Turkey to assist her in completing the application form.  He advised her not to include her non-dependent children in the form.  At the time both children were living in Iraq.

34. In her Statutory Declaration the Applicant stated, in part:

    …… at the time of completing the application form, I was suffering from severe anxiety and traumas arising from the combined effects of the slaying of my nephew, persecution and displacement from my home country. The acute anxiety and trauma severely affected my better judgement and I regret the non-disclosure of relevant information.[19]

    [19] Exhibit R1 at 123.

35. I accept the evidence set out in the preceding six paragraphs and find accordingly.

    EXPERT EVIDENCE:  REPORT OF MS SAHAGIAN, REGISTERED PSYCHOLOGIST

36. In 2021 the Applicant was referred by her General Practitioner to Ms Sahagian for management of the Applicant’s psychological issues.

37. On 30 June 2021, Ms Sahagian reported, in part:

    According to the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders), [the Applicant] suffers from Post-Traumatic Stress Disorder (PTSD). She reported triggers including the assassination of her nephew in Iraq, persecution in Iraq, and medical ailments. Her diagnosis has been confirmed on the basis of clinical interviewing and the identified symptomatology.[20]

    [20] Exhibit R1 at 134.

    REASONING

38. In his Statement of Facts, Issues and Contentions [21], the Respondent contends that:

    …… the Applicant does not satisfy the good character requirement of paragraph 21(4)(f) because the Applicant has not been honest and truthful in her dealings

    with the Department. In particular, since applying for her Woman at Risk Visa, up until the Present Application, the Applicant has provided false and/or misleading information to the Department in relation to her familial and personal circumstances, and particularly, the existence of her non-dependent children, despite evidently having knowledge of their identity and whereabouts at all times.[22]

    [21] Dated 18 February 2022.

    [22] At para. 42.

39. The Instructions and the judgements and decisions to which I have referred make it clear that abiding by Australian laws is a very important factor that I need to consider.

40. The Applicant accepts that she provided false information to the Australian Government in failing to disclose the existence of her two children when she applied for a Woman at Risk visa in 2011.  She has expressed her regret for having done so.

41. I am satisfied that there are several factors to be considered when assessing the seriousness of the Applicant’s conduct in providing incorrect information in her visa application:

    oher age and ill-health at the time;

    oher isolation as a refugee having recently left her home to escape persecution;

    othe recent killing of her nephew;

    oher lack of English skills leading to her seeking the advice of others.

42. Had there only been one instance of the Applicant intentionally misleading the Department and taking into account that it occurred over 10 years ago, the considerations referred to above would have weighed heavily in favour of granting the Applicant’s application for citizenship.  However, I have found that the Applicant continued to mislead the Department on a number occasions and failed to take opportunities to correct her initial misrepresentation.

43. When interviewed in October 2011, the Applicant was warned concerning the provision of false information and yet she did not disclose the existence of her children.  In January 2019 the Applicant was given a similar warning before she submitted her Declaration of Service form.  Again, she failed to disclose the existence of her two children even though at the time she was represented by a migration agent.Later the same month she informed a Departmental Officer that she did not have children.

44. The Applicant has said that at times she may not have understood what she was being asked.  However, I am not satisfied that her understanding was so poor that she did not understand the need to disclose that she had children.  At the time of the 2011 interview the Applicant had the assistance of an interpreter; in 2019 she had the assistance of a Migration Agent.  At the time of the 2019 interview the Applicant had lived in Australia for approximately eight years and had undertaken an English language course.

45. In considering whether a person is of “good character” I must consider whether the person has the enduring qualities of a person of good character.  This requires a consideration of the actions of the person over a significant period of time.  As the Applicant continued to fail to provide accurate information to the Department in January 2019, it is only since that time that she has shown the characteristics of a person of good character by informing the Department of the true situation.  I am not satisfied that these characteristics have been shown to be enduring.

46. Until the Applicant made a full disclosure to the Department when she provided her Declaration made 29 November 2019[23], she did not demonstrate that she was prepared to abide by the laws of Australia.

    [23] Exhibit R1 at 74.

47. For the reasons stated I am not satisfied that at the date of my decision in this application, the Applicant is a person of good character.

48. My decision does not mean that the Applicant cannot again apply for citizenship.  In the future she may be able to demonstrate that she is of good character and be able to meet the other requirements of the Act to enable her to enjoy the privileges of Australian citizenship.

    CONCLUSION

49. The reviewable decision made by the delegate of the Minister on 21 July 2021, to refuse the Applicant’s application for Australian citizenship will be affirmed.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated: 14 June 2022

Date(s) of hearing:	11 April 2022
Solicitors for the Applicant:	Mr S Issa, Firmstone & Associates
Solicitors for the Respondent:	Ms C Campbell, HWL Ebsworth Lawyers