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

Gebrelul and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4267 (28 October 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8490
Re:Ghenet Tadesse Gebrelul
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services
and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:28 October 2020
Place:Perth

The reviewable decision, being the decision of a delegate of the Respondent dated
25 November 2019 to refuse the Applicant’s application for Australian citizenship by conferral, is affirmed.
.........................[sgd]...............................................
L M Gallagher, Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied applicant was of good character – evidence that purported driver’s licence was fake and fraudulently obtained – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(h), 24, 52(1)(b)
CASES
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
Fang and Minister for Immigration and Border Protection [2018] AATA 3686
Ghumaan and Minister for Home Affairs [2019] AATA 200
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Nguyen and Minister for Home Affairs [2019] AATA 998
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy, at 1 June 2016
Revised Citizenship Procedural Instructions – CPI 15, Item 4.7
REASONS FOR DECISION
L M Gallagher, Member
28 October 2020
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent dated

25 November 2019 (R1, T18, pages 116 to 126) to refuse the Applicant’s application for Australian citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).
The basis for the refusal was that the delegate was not satisfied that the Applicant was of good character, as required by s 21(2)(h) of the Act, because she had not acted honestly in providing a fake driver’s licence in support of her application (R1, T18, pages 121 to 123).
The application for review is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision under s 24 of the Act.
BACKGROUND
The Applicant is a 40-year-old citizen of Eritrea, who arrived in Australia on 9 November 2011 as the holder of a Refugee (subclass 200) visa granted on 7 September 2011

(R1, T4, page 13 and R1, T18, page 119).
On 5 January 2017, the Applicant applied for citizenship by conferral with the Department of Immigration and Border Protection, which later came to be known as the Department of Home Affairs (the Department)[1] (R1, T4, pages 11 to 27). The Applicant provided a number of documents in support of her application (R1, T5, pages 28 to 31).
[1] The Department also (and likely inadvertently) refers to the Applicant’s application form having been lodged on 6 January 2017 (R1, T8, page 40), however the Tribunal adopts the date that appears on the contemporaneous date stamp on the application form (R1, T4, page 11).
In a letter sent to the Applicant by email dated 17 June 2017, the Department requested further supporting documents in order to process her application (R1, T6, pages 32 and 33), a number of which were provided (R1, T7, pages 34 to 38).
On 7 September 2017, the Department sent a letter to the Applicant requesting further additional identity documents to assist in processing her application (R1, T8, pages 39 to 42). On 20 September 2017, the Applicant provided a number of additional documents, including:
(a)
a scanned copy of a document purported to be the Applicant’s driver’s licence, issued by the Sudanese Directorate-General for Traffic on 1 July 2007

(the Sudanese driver’s licence) (R1, T9, pages 62 to 63); and
(b)
an undated translated copy of the Sudanese driver’s licence, certified on

20 September 2017 (the translated Sudanese driver’s licence) (R1, T9, page 61).
A number of further additional requests for information and an invitation to comment were made by the Department and responded to by the Applicant during the period of January 2018 to October 2019 (R1, T12 to T15, pages 81-107).
Relevantly, on 11 October 2019, the Department wrote to the Applicant inviting her to comment on adverse information (R1, T15 at pages 99 to 103). The letter informed the Applicant that (R1, T15, page 101 and R2, Annexure A):
To support your application for Australian citizenship you provided a certified copy of a driver’s licence from Sudan - [licence number] - and a translation.
On 6 August 2019, the Department sent the document for verification to the Department’s overseas Post in Nairobi.
On 11 September 2019, the Post advised the Department the driver’s licence was counterfeit. The Department has been advised of the following:
·The license provided is not consistent with the format issued by the issuing authority
·The records for licenses issued in July 2007 shows only one license was issued
·The licence issued belonged to a male with a different name to the applicant
·There is no record of a license being issued to the applicant
On 14 November 2019 and 15 November 2019, the Applicant responded to the Department’s invitation to comment by way of:
(a)
the Applicant’s statutory declaration, declared on 14 November 2019

(R1, T16, pages 111 to 112); and
(b)a number of third-party character references (R1, T16, pages 109 to 110 and T17, page 114).
In her statutory declaration, the Applicant relevantly declared (R1, T16, page 111):
In the first place, I would really like to express my gratitude for inviting me to respond to your queries on the legality of my driving license. Shamefully, I do acknowledge the mistake that I had provided to your good office the counterfeit driving license [sic]. While acknowledging, learning and taking responsibility, I would kindly like to elaborate the situation.
A)
Firstly I was credulous. As young refugee, when I cross the border from Eritrea to Sudan, my friends and other acquaintances in Sudan, advised me to obtain driving license [sic]. The logic being, that if I get the driving license [sic] soon, it can help me to move to Australia. Little did I know that they sold me unregistered and fake one. Me being new and lack of experience and the circumstance in Sudan, as one of the motherland of counterfeits,

the brokers tricked me to involve myself
.
B)Secondly, I have been unaware of its invalidity until the day you informed me that the driving license [sic] I held for years was fake. That is why I provided fraud license [sic] with pride to Transportation Department with sheer belief to support my application for Australian driving license. Because I was able to obtain Australian driving license [sic] by concerned Department after I provided the fraud one to them. I thought the previous license was legal.
C)
Honestly, in spite of the above mentioned unintentional mistakes and errors, from which I learned a lot, I have been in Australia for many years. I’m a God-fearing person. I love the people and the country. My kids were born here.

I adopted [sic] well [to Australia] and get along with all my fellow citizens that itself justifies my good character. Besides, I have never broken a law nor convicted of any offense. I am responsible mother and spouse who would like to be a citizen of this beautiful country of my dreams.
Lastly, while I fully take the responsibility of the naive [sic] mistakes I made many years ago, I assure you that I am a new version of myself. I have already become Australian in both spirit, culture and allegiance. I appreciate for your considerations in advance. I thank you!
(Emphasis added.)
On 25 November 2019, a delegate of the Respondent made the Reviewable Decision

(R1, T18, pages 116 to 126).
On 20 December 2019, the Applicant applied to the Tribunal seeking review of the Reviewable Decision (R1, T2, pages 3 to 9). In her application for review, the Applicant claimed the Reviewable Decision was wrong because (R1, T2, page 7):
[T]he decision-maker misinterpreted the response the applicant gave for a request for further information. The applicant’s response is completely taken out of context and given a wrong meaning. Several factors have not been considered during the decision.
LEGISLATION AND POLICY FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Further, s 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).
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 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.)
Whether the Applicant is a person of good character at the time of the Minister’s decision on the application for citizenship is the only eligibility criterion in issue in these proceedings.
The meaning of good character
The Act does not define ‘good character’. Guidance is contained in the Citizenship Policy (the Policy).[2] The Policy is government policy and hence should be applied unless there are compelling reasons against its application (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644-645).
[2] The Tribunal notes that the Policy replaces the policy guidance previously provided in the form of the Australian Citizenship Instructions, which were last published on 26 February 2015. From 1 June 2016, the Australian Citizenship Instructions detail the citizenship operational instructions and supplement the policy guidance provided in the Policy.
Chapter 11 of the Policy provides guidance for assessing an applicant under the

‘good character’ test prescribed by section 21(2)(h) of the Act. Chapter 11 of the Policy cites Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (Irving) at 431-432, in which the Full Federal Court noted:
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 is 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.
Chapter 11 of the Policy goes on to explain that (the Policy at pages 145 to 146):
In this context, ‘moral’ does not have any religious connotations.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
§ characteristics which have been demonstrated over a very long period of time
§ distinguishing right from wrong
§ behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant.
Their behaviour is a manifestation of their essential characteristics.
This broad definition means that 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 their migration and citizenship processes.
In Irving,[3] Davies J stated that: ‘[t]he question whether a person is or is not of “good character” is primarily an issue of fact.’ Davies J further stated that the assessment of character requires the decision-maker to exercise a value judgment (at page 427 to 428):
I should reiterate that the issue for decision was an issue of fact, the determination of which Parliament reposed in the Minister and his delegates. It is not the task of this Court to come to its own view of that fact. The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.
[3] At page 424.
Chapter 11 of the Policy further provides that an applicant of good character would,

among other things (the Policy at page 147):
§respect and abide by the law in Australia and other countries
§…
§be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
§providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
…
(Emphasis added.)
The Policy provides the following guidance on a decision maker’s task of weighing up the character decision, as follows (the Policy at pages 149–150):
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
§would a person of good character have behaved the way the applicant did
§what is there to demonstrate that the applicant has upheld and obeyed the law
§has the applicant behaved in accordance with Australia’s community standards
§does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:
‘a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.’
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.
The Revised Citizenship Procedural Instructions[4] (Revised CPI) set out a number of factors that may be taken into account when assessing whether an applicant is of good character, including the applicant’s behaviour in his or her interactions with government officials,

as follows (Revised CPI 15, Item 4.7):
The Australian community expects that persons in Australia will abide by Australian laws. This includes providing correct information when seeking a government benefit or service.
It is relevant to consider whether the applicant has been honest in dealings with the Department. Decision-makers should consider all of the applicant’s interactions with the Department, including visa and citizenship applications.
…
If the applicant has knowingly presented incorrect information or a bogus document, this may reflect on the person’s character. If the applicant presents the incorrect information or bogus document unknowingly, there would be no ground for character concern.
(Original emphasis.)
[4] The Revised Citizenship Procedural Instructions were published on 1 January 2019 to support the function of the Australian Citizenship Act 2007 (Cth).
In Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082

at [82]–[84], Senior Member Puplick emphasised the importance of applicants being truthful:
82.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.
83.Citizenship cannot be awarded on the basis of false statements.
There are no excuses for making false statements in this regard.
84.Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort [sic] to placing themselves in the hands of deceitful third parties.
(Emphasis added and footnotes omitted.)
Further, in Fang and Minister for Immigration and Border Protection [2018]
AATA 3686 at [97], Senior Member Puplick made the following comment about the need for an applicant to be truthful about their identity:
97.…those, who are not citizens and who are seeking to do so, must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement – applicable indeed, equally to citizens and non-citizens alike
(Emphasis added.)
The Respondent has submitted to the Tribunal both the relevant authorities and the Policy make it clear that (R2, paragraph 13):
(a)a person can fail to establish that they are of good character even if they have not been convicted of any criminal offences;[5] and
(b)it has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character (for example, Beyan v Minister for Immigration and Border Protection [2015] AATA 256).
[5] See for example, Chapter 11 of the Policy, at page 147 (extracted at paragraph [22] above) and decisions extracted at paragraphs [25] and [26] above.

As to referee reports (that is, character references), the Policy states (the Policy at

page 155):
… [they] can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, or who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc., if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.
(Emphasis added.)
ISSUE
The issue for review by the Tribunal is whether the Applicant was, as at 5 January 2017,

of good character for the purposes of s 21(2)(h) of the Act.
EVIDENCE
The matter was heard in Perth on 16 September 2020. The parties appeared at the hearing by telephone.[6] The Tribunal thanks the parties for their cooperation in appearing by telephone.
[6] Following the changes to national circumstances due to the COVID-19 pandemic, the Tribunal’s policy is not to conduct in-person hearings as a temporary measure.
The Applicant was represented by Ms Meskerem Lemma Ashagrie of Desire Australia

Pty Ltd, Migration Agents. The Tribunal heard oral evidence from the Applicant with the assistance of Mr Eyassu Andemeskel, Tigrinian interpreter. The Respondent was represented by Ms Jones-Bolla from Sparke Helmore Lawyers.
The Tribunal received the following evidence:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 11 May 2020 (A1);
(b)
Applicant’s Supplementary SFIC dated 1 July 2020 including Applicant’s

Western Australian Driver’s Licence (A2);
(c)Birth Certificates (x2) of the Applicant’s children (A3);
(d)Applicant’s National Police Certificate as at 8 February 2020, Character reference letter from Eritrean Orthodox Tewahdo Church Perth, WA dated 6 March 2020, Applicant’s Statutory Declaration dated 6 March 2020 and Support Letter from Tesfay Mesfin, President United Eritreans Association of WA dated 9 March 2020 (together being A4);
(e)the T documents (172 pages) (T1-T20) (R1); and
(f)Respondent’s SFIC dated 16 June 2020 (R2).
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Applicant gave the following relevant evidence at hearing, including during

cross-examination by Ms Jones-Bolla:
(a)The Applicant decided to go through a fixer in order to obtain her Sudanese driver’s licence, rather than applying through the official authorities because she and her friends do not speak the language and because in Sudan the authorities do not work in a proper or legal way (transcript, page 18 [5]).
(b)The Applicant said that she believed the fixer to be genuine because when she met him, she was asked to show her identification (transcript, page 22 [10]).
(c)The Applicant expected the licence document she obtained through the fixer to also be genuine (transcript, page 18 [20)-[25]).
(d)
The Applicant was introduced to the fixer by a woman she met at church in Sudan, with whom she had stayed for one week (transcript, pages 19 [20] and 20 [25]).

The woman told her that ‘...everyone does it that way and that he’s a good person.’ (transcript, page 20 [40]).
(e)
The Applicant believed that the facilitator ‘…used to work like that before.’

(transcript, page 21 [40]), meaning that he used to work for the licensing authority and the people that work there (at the authority) were his friends (transcript, page 22 [5]).
(f)At the time the Applicant engaged with the fixer, she was unaware of the situation regarding corruption in Sudan and only realised after the engagement with the fixer that the country was corrupt (transcript, page 24 [15]-[30]).
(g)The Applicant obtained her Sudanese driver’s licence in 2007[7] and at that time she did not know that the licence was counterfeit. She only became aware that the licence was not genuine when the Australian government informed her that it was fake (transcript, page 26 [45]).
(h)As to what the Applicant meant in her statutory declaration by ‘…the brokers tricked me to involve myself’,[8] given her evidence that she thought the fixer was genuine and that she trusted him[9], the Applicant said that (transcript, page 28 [10]-[20]):
…I trusted him, but when we went there, they spoke in their language and they tricked me there…
… because they were speaking in their language and I did not understand any of their language at the time…
[7] Extracted translation at R1, T9, pages 61 to 63.
[8] R1, T16, page 111. Applicant’s statutory declaration dated 14 November 2019.
[9] Transcript, page 24 [15]).
Ms Jones-Bolla put it to the Applicant that her evidence that she became aware of the situation regarding corruption in Sudan after the Applicant no longer lived there

(transcript, page 28 [40]) is inconsistent with her earlier written evidence that

(A4, paragraph 12):
The political administration in Sudan is very corrupt. Document processes such as driving [sic] licence are unnecessary [sic] long due to inefficient system and corruption. It is common for people to bypass the long wait through dealings with ‘fixers.’ Fixers are either civil servants who ‘get things done’ after collecting bribes directly or are linked to civil servant [sic] who receive bribe through fixers to issue documents. I was a complete stranger to this system and hence was (mis)guided by people in my community.
Ms Jones-Bolla then put it to the Applicant that knowing that the system was corrupt,

she knew that it was corrupt when she arrived in Sudan in 2007 and that the Sudanese driver’s licence issued to her was not genuine. When the Applicant gave an answer unrelated to this question Ms Jones-Bolla rephrased and put it to the Applicant that given her written evidence (at paragraph [35] above), she knew that the way she obtained her Sudanese driver’s licence could not result in a genuine driver’s licence. The Applicant maintained that she did not know her Sudanese driver’s licence was fake.
Ms Jones-Bolla then put it to the Applicant that given her written evidence that it took a long time to obtain a Sudanese driver’s licence via the proper system (refer to paragraph [35] above), she bypassed the long wait by obtaining the licence through the fixer within one week.[10] After some initial reluctance, the Applicant agreed she obtained the licence a lot quicker by going through the fixer than if she had applied through the transport authority (transcript, page 32 [45]).
[10] A1, paragraph 8(c) states “[t]he applicant received her licence in about one week from her test through her contact. The applicant paid the contact a sum of money for facilitating this…”
When asked by Ms Jones-Bolla, the Applicant agreed that a fixer was a person who collects or receives bribes for a service, however she stated that she did not pay the fixer she had engaged to obtain her Sudanese driver’s licence (transcript, page 34 [45]).
When it was put to the Applicant that her evidence that she did not pay the fixer was wholly inconsistent with her written evidence that she had paid the fixer,[11] the Applicant said that she did pay him (transcript, page 37 [25]).
[11] Refer to footnote 9.
The Applicant then disagreed with the proposition that by the act of bribing the fixer she did not know at that time that the Sudanese licence was counterfeit nor that the fixer did not work for the issuing authority (transcript, page 37 [30]-[40]).
Ms Jones-Bolla put it to the Applicant that her evidence at paragraph [40] was wholly inconsistent with her earlier written evidence (transcript, page 37 [40]). In this context,

Ms Jones-Bolla referred to the following passages:
The applicant stated that to help facilitate obtaining the licence, a fellow refugee had put her in touch with a person (‘contact’) whose friend worked for the authority.
(A1, paragraph 7, second sentence)
I was introduced to a fixer who was linked to a civil servant that can assist with my driving licence.
(A4, paragraph 13, first sentence)
In the context of the evidence at paragraph [41] above, the Applicant conceded that she knew the fixer that she used to obtain the Sudanese driver’s licence did not work for the issuing authority. However, the Applicant maintained that she did not know at the time of obtaining the Sudanese driver’s licence that it was counterfeit nor that she was not going through the proper channels (transcript, page 38 [20]-[40]).
Ms Jones-Bolla directed the Applicant to the following passage from her statutory declaration dated 6 March 2020 (A4, paragraph 22):
I have made an innocent mistake by bypassing the rather slow and inefficient government process by going through a fixer.
Ms Jones-Bolla then put a number of further propositions to the Applicant, her responses extracting the following evidence:
(a)The Applicant knew that it would take a long time to obtain a driver’s licence through the proper authority (transcript, page 39 [20]-[25]).
(b)The Applicant bypassed the system and paid a bribe (transcript, page 39 [20]-[25]).
(c)The Applicant obtained the licence quickly going through a fixer whom she knew did not work for the issuing authority (transcript, page 39 [20]-[25]).
(d)Based on the circumstances listed in paragraph [44(a)] to [(c)] above, she did not know that at the time she was issued with the Sudanese driver’s licence in 2007, that it was not genuine (transcript, page 39 [40]-[45]).
Ms Jones-Bolla then pointed out to the Applicant, with her agreement, that the translated version of her licence (R1, T9, page 61) does not include the Applicant’s date of birth,

does not list her place of birth and that she did not initially submit the translated licence document with her application for citizenship (transcript, page 40 [5]-[45] and page 41 [5]).
When asked by Ms Jones-Bolla, the Applicant said that:
(a)the reason why she did not initially submit the translated version of her licence with her application for citizenship was not because she knew it was counterfeit (transcript, page 41 [5]-[25]).
(b)
the reason why she submitted the translated version of her licence to the Department after two letters were sent requesting identification documents

(R1, T6, pages 32-33 and T8, pages 40-42) also was not because she knew it was counterfeit (transcript, page 42 [5]-[20]).
(c)While she did use the Sudanese driver’s licence in Sudan between 2007 and 2011, she did not know it was fake (transcript, page 42 [25]-[30]).
When asked if she had obtained her Australian driver’s licence by providing her counterfeit Sudanese driver’s licence to the Australian Department of Transport, the Applicant answered “No” (transcript, page 42 [30]-[45] and page 43 [5]-[15]).
Further to the Applicant’s evidence in paragraph [47] above, Ms Jones-Bolla took

the Applicant to the following extract from her statutory declaration dated 14 November 2019:
…That is why I provided fraud license [sic] with pride to Transportation Department with sheer belief to support my application for Australian driving licence.
When asked by Ms Jones-Bolla, the Applicant accepted her evidence at paragraph [48] above was wholly inconsistent with her evidence at paragraph [47] above, however she continued to maintain that she did not know her Sudanese driver’s licence was fake at the time she provided it to the Department of Transport in Australia (transcript, page 45 [20]-[35]).
During re-examination by Ms Meskerem, the Applicant said she later (being after the time that she obtained her Sudanese licence) came to learn about the situation regarding corruption in Sudan from what people told her at her church in Sudan (transcript, page 50 [25]-[30]).
CONSIDERATION
The issue for review is whether the Applicant was, as at 5 January 2017,

of good character for the purposes of s 21(2)(h) of the Act.
Whether the Tribunal is satisfied that the Applicant is of good character
Ms Meskerem made the following relevant submissions for the Applicant in support of her claim that the Applicant is of good character for present purposes:
(a)
The Applicant did not knowingly obtain a counterfeit driver’s licence in Sudan

(A1, page 5, paragraph 18).
(b)The Applicant denies any knowledge of the inauthenticity of the Sudanese driver’s licence (A1, page 5, paragraph 18 and page 7, paragraph 23). There is nothing in the wording of the Applicant’s statutory declaration from which it can be implied or that confirms she knowingly obtained a counterfeit driver’s licence in Sudan.
(c)The Applicant believed her Sudanese driver’s licence was genuine until the Australian delegate determined otherwise (A1, page 5, paragraph 19).
(d)
While the Applicant admits to having gone through a ‘broker’ to obtain her Sudanese driver’s licence, this is ‘common practice’, ‘the common path’ and

‘not unusual in Sudan.’ The Applicant’s mistake she made in following this path was ‘innocent’ (A1, page 6, paragraphs 20 and 21).
(e)At the time the Applicant obtained the Sudanese driver’s licence, two months after her arrival in Sudan in 2007, she was ‘a vulnerable person in a vulnerable context’ and given the level of corruption in Sudan, it was plausible for her to rely on the fixer to ‘get through the licencing process’ (A1, page 6, paragraph 21).
(f)
Given the Applicant had no knowledge of the licence’s inauthenticity,

any subsequent use was reasonable (A1, page 8, paragraph 29).
(g)
The Applicant has established that she did not knowingly obtain a false document. The Applicant believed that she had gone through the requirements of the licensing authority by completing the form, paying the required government fee and taking the necessary driving tests. The Applicant was vulnerable in the context which forced her to pay the facilitator, the use of the facilitator being an innocent mistake

(A1, page 10, paragraph 33) and one she regrets (A2, page 2, paragraph 9).
(h)
Even if the Applicant had obtained a false document with intent and knowledge,

13 years has passed and the Applicant has no criminal record in Australia

(A1, page 11, paragraph 37). Ms Meskerem submitted at hearing (transcript, page 59 [30]-[40]):
…other factors that I would like the member [sic] to consider is the time lapse between 2007 and 2020, it’s been 13 years since the applicant gone through the process of getting the license… The time lapse between the time the license was issued and now is 13 years, and the time lapse between the document was presented to the licensing authority in Australia, that which was 2016, it’s been four years as well. And also the fact that she’s lived for the past nine years in Australia and there’s no (indistinct) matter that is documented against her name.
(Emphasis added.)
Ms Meskerem made the following additional submissions at hearing:
…What we are assessing is an applicant who claims that she has presented a document to the Department without knowing, without any intention, and not knowing that it wasn’t genuine. And what I’m saying is, even if she knew it was not genuine, and even if that is the point that we’re assessing the applicant from,

that the context she lived in would that be taken into consideration as a mitigating factor for some - I’m just saying, she was in a situation where she was not in a position to make the most - you know, the best decision. Her state of mind on its own may not be in the right place and she might have made the wrong decision of considering a document that’s not genuine.
(transcript, page 61 [5]-[15])
What I’m saying is, the situation she was in might have put pressure on her and just go along with the normal with what they consider - with what the refugee community considers the normal way, which in her understanding was the way that they do things. Which is going through a facilitator.
(transcript, page 61 [30]-[40])
…She admits, as I say, even going through the facilitator on its own was the wrong decision she make, so she’s already admitted that, that that was a wrong decision she made. And it’s up to you to decide on that one because she’s admitted that going through - that’s an illegal procedure she followed, and you can make a decision on that one. But the parts that also she said is that it wasn’t with knowledge that that path was going to lead to a counterfeit document.
(transcript, page 66 [20]-[30])
(Emphasis added.)
The Respondent contends that there are three issues that weigh against a finding that the Applicant is of good character (R2, paragraph 15). These are addressed, in turn, below.
Firstly, and in the Respondent’s view, most notably and relevantly, is the Applicant’s intentional efforts to obtain a Sudanese driver’s licence through a broker or a fixer with payment of a bribe, rather than through any official channels (R2, paragraph 15).
In this regard, the Respondent submitted that whilst the Applicant claims she did not know the Sudanese driver’s licence was counterfeit, the circumstances in which she obtained the licence were such that any reasonable person would have known that it was not an official licence, those circumstances having been set out in paragraphs 11 to 13 of her statutory declaration dated 6 March 2020 (A4)[12] (R2, paragraph 16). In making this submission,
[12] Reproduced in part at paragraphs [35] and [41] above.

the Respondent emphasised the following:
(a)
At the time of applying for her Sudanese driver’s licence, the Applicant knew that processing applications for documents were long, or even ‘unnecessar[ily] long’.[13] Far from there being a long process to obtain the licence, the Applicant received her licence in one week.[14] The expediency with which she was able to obtain the licence must have been one of the reasons she chose to go through the fixer, as,
[13] Applicant’s statutory declaration dated 6 March 2020 at paragraph 12 (A4)
[14] Refer to A1, at [8(b)].

by her own account it was ‘common for people to bypass the long wait through dealings with fixers.’[15]
[15] Refer to Applicant’s Statutory Declaration dated 6 March 2020 (A4) at paragraph 12.
(b)
The Applicant interacting with a fixer who, of her own understanding,

was an individual who collected or received bribes for a service.[16] At hearing,

Ms Jones-Bolla additionally noted that:
(i)when the Applicant was first questioned about the payment of the bribe to the fixer, she initially stated that she didn’t give him any money. It was only after her statutory declaration and her claims in her SFIC were put to her, that she ultimately accepted she bribed the fixer to provide her with a Sudanese driver’s licence (transcript, page 68 [45] and page 69 [5]).
(ii)the Applicant also knew the fixer did not work for the authority. When it was put to the Applicant during cross-examination, she first said ‘no.’ It was only when paragraph 13 of her statutory declaration dated 6 March 2020 (A4) was put to her, that she accepted she knew the fixer did not work for the issuing authority (transcript, page 69 [5]-[10]).
(c)The Applicant was told that she had passed the driving test after having merely driven ‘for about (or less than) 5 minutes.’[17]
[16] Refer to Applicant’s Statutory Declaration dated 6 March 2020 (A4) at paragraph 12.
[17] Refer to A1, at [8(b)].

The Respondent submitted that the totality of the circumstances at paragraph [56] above demonstrate that the Applicant fully intended to obtain a counterfeit licence and did so because she wanted to bypass the long waiting times required to obtain an official licence. This behaviour is, in the Respondent’s submission, evidently inconsistent with the enduring moral qualities of a person of good character (R2, paragraph 20).
The second issue that the Respondent submits weighs against a finding that the Applicant is of good character is the Applicant’s sustained used of the fraudulent Sudanese driver’s licence, including in Australia to obtain an Australian driver’s licence and as a supporting document in her citizenship application (R2, paragraph 15).
In the context of the second issue at paragraph [58] above, the Respondent considers it noteworthy that:
(a)
The Applicant used the counterfeit licence in Sudan between 2007 and 2011,

used it again in 2016 to obtain an Australian driver’s licence[18] and also provided the licence to the delegate as part of her citizenship application (R2, paragraph 21).
(b)The Tribunal has previously found that prolonged deception against a government body weighs against an applicant’s good character.[19] The Respondent respectfully contends that as a matter of logic, that must be so. Therefore, in the Respondent’s view, the Applicant’s repeated use of the counterfeit licence over a number of years further weighs against her claimed good character (R2, paragraph 22).
[18] R1, T16 at page 111 and see A1 at [12].
[19] Referring to Nguyen and Minister for Home Affairs [2019] AATA 998 at [49] (Deputy President JW Constance) and Ghumaan and Minister for Home Affairs [2019] AATA 200 at [166] (Senior Member Puplick).
Thirdly, the Respondent contends that the Applicant refuses to accept responsibility for the attainment and continued use of the Sudanese driver’s licence (R2, paragraph 15).

In relation to this issue, the Respondent submitted further that:
(a)
In circumstances where the Applicant obtained her counterfeit driver’s licence within a week through a broker after having only been tested for five minutes, in stark contrast to the delays expected through official channels, it is manifestly obvious that the driver’s licence could not be an official document. At hearing,

Ms Jones-Bolla noted relevantly, that (transcript, pages 69 [15]-[45] and 70 [5]-[15]):
…when the summary of the circumstances were put to her, namely, she knew the proper system took too long to obtain (audio malfunction), so she bypassed that system, and that she paid a bribe and obtained the license quickly by going through the fixer who did not work for the issuing authority. She accepted that those were the circumstances in which she obtained a driver’s license. Member, the documents also do not include relevant details, the driver’s license does not include relevant details, such as the applicant’s date of birth, and further the applicant has withheld the document, only providing it to the Department after two requests were made for further information regarding her identity, despite her evidence today that she has been in possession of the document since 2007.
Member, just to reiterate that, the applicant lodged her application for Australian citizenship on 5 January 2017. This is the document at T4.
…
She provided supporting documents, which are included at T5, which do not include the driver’s licence. At T6, a letter dated 17 June 2017 appears, which requests further information from the applicant. At T7 are the supporting documents that she’s provided in support in response to that letter, which, again, does not include that driving licence. At T8 is the second letter requesting information from the Department, dated 7 September 2017, and it is only after that second letter is issued that the applicant, on 20 September 2017, provides the driving licence in question.
Member, the applicant clearly wished to bypass the wait times. She did not use the official channels; she used a fixer. The circumstances in which she has obtained the driver’s licence was such she could not have believed the document was an official document. Member, this behaviour weighs heavily in favour of the finding that the applicant is not of good character.
…
And at page 159, one of the factors for the tribunal to consider is the applicant’s behaviour in the interactions with government officials. What the Australian community expects is that persons in Australia will abide by Australian law and this includes providing correct information when seeking a government benefit or service.
Member, in the Minister’s submission, the applicant has knowingly presented information which she knew to be counterfeit and this weighs heavily in favour of a finding that the applicant is not of good character.
I’ve gone through the circumstances in the way that she’s obtained that driver’s licence, and those circumstances are clearly in favour that she knew that the document she obtained could not have been genuine.
(Emphasis added).
(b)
Against that background, it is notable that instead of accepting the document was counterfeit, the Applicant mounted a challenge to the Nairobi Post’s findings on

11 September 2019[20] that the licence was a counterfeit.[21] The Nairobi Post’s email confirms, through official channels, what, in the Respondent’s submission, is already apparent: the Applicant’s Sudanese driver’s licence is counterfeit (R2, paragraph 24).
[20] R2, Annexure A.
[21] A1, [25] –[26]. The Tribunal notes this challenge was not pursued at the hearing (transcript, page 8 [30]-[45] page 9 [5]-[45] and page 10 [5]-[45]).
The Respondent contends that the fact that the Applicant does not accept that her licence was counterfeit,[22] even against the highly questionable circumstances in which she obtained it, weighs against her claimed good character because it:
(a)shows that she is unable to demonstrate right from wrong.[23]
(b)renders nugatory any ‘responsibility’ she purportedly accepts[24] given that, beneath the surface, she still contests whether the licence is counterfeit (R2, paragraph 23).
[22] The Tribunal notes that while, at hearing, it appears that the Applicant now accepts her Sudanese driver’s licence is counterfeit, she still maintains that she only became aware of this when the Department informed her as such in 2019. Refer to paragraphs [36], [42], [52(b)] and [52(c)] above.
[23] The Policy, page 145.
[24] R1, T16, page 111.
Ms Jones-Bolla made a number of additional submissions at hearing, as follows:
(a)
To the extent the Applicant now claims that she did not know the Sudanese political administration is corrupt, this is wholly inconsistent with the Applicant’s previous declarations and statements. The Applicant has stated in her statutory declaration dated 6 March 2020 (A4) that ‘the political administration in Sudan is very corrupt. Document processes are unnecessarily long due to inefficient system [sic] and corruption. It is common for people to bypass the long wait through dealings with fixers.’ The Applicant does not qualify this in any of her statements by stating when she became aware. In any event, the Applicant told the Tribunal that she knew the system was corrupt when she was living in Sudan (between 2007 and 2011).

The Applicant arrived in Australia in November 2011. She lodged her application for citizenship in January 2017 and provided that document, a counterfeit licence,

in September of 2017 to the Department. By the time she arrived in Australia and when she applied for citizenship, on her own evidence, she knew the political administration in Sudan was corrupt (transcript, page 70 [20]-[25], [30]).

Further, the Applicant gave evidence at hearing that she was unable to go with a friend to the authority as the country ‘doesn’t work in the proper legal way’

(transcript, page 71 [10]).
(b)The Applicant claims that she trusted the fixer, but this is again inconsistent with her evidence that she met the person once, was introduced to them by someone whom she knew for a week, and the fact that she knew that the system was corrupt (transcript, page 70 [20]).
(c)The Applicant’s sustained use of that fraudulent document to the officials in Sudan, the Department of Transport in Australia, and, as a supporting document in her citizenship application, also weighs heavily against her claim to good character (transcript, page 71 [25]).
(d)
When questioned about providing the counterfeit licence to the Department of Transport at the hearing, the Applicant firstly stated that she did not do so.

Again, it was only when the inconsistency between her evidence at hearing and her earlier statement in the statutory declaration dated 14 November 2019

(R1, T16 , page 111) was put to her, that she accepted that she provided the counterfeit licence to the Department of Transport (transcript, page 70 [35]).
(e)
The time lapse between 2007 and 2020 cannot be seen as a mitigating factor.

This is because in 2016, the Applicant, in possession of the fraudulent document, used it to obtain her driver’s licence, and then again, in 2017, the Applicant has lodged the fraudulent document with the Department in support of her citizenship application. This goes against the Policy, which states that an applicant of good character would be truthful in dealings with the government when they are requesting government benefits or services, and the Revised CPI, in respect of providing false personal information and fraudulent documents to the Department (transcript, page 71 [35]-[45]).
(f)
More broadly, the Applicant, during her evidence, was evasive and,

in the Respondent’s submission, an unconvincing witness, such that she has exhibited to the Tribunal that she is willing to modify her evidence to obtain a positive outcome for herself.
At the outset, and for completeness, the Tribunal is satisfied that the Applicant now concedes that her Sudanese driver’s licence is counterfeit and that the evidence supports this being the case (refer to paragraph [9] above).
The Applicant would like the Tribunal to consider that while she admitted she made the wrong decision in engaging a fixer in order to obtain her Sudanese driver’s licence,

that being an illegal procedure, it was not with the knowledge that this pathway was going to lead to a counterfeit document (transcript, page 66 [25]). The Tribunal has formed the view that this cannot be the case, given the Applicant’s evidence that a fixer is someone who receives a bribe (see, for example paragraphs [35], [38] and [44(b)] above).

The Tribunal is also satisfied on the evidence that the Applicant knew this at the time she engaged the fixer.
The Applicant also submits that the lapse of time between when she obtained her Sudanese driver’s licence in 2007 and the present ought to be viewed in her favour as she has not engaged in any activity that reflects adversely on her character (refer to paragraph [52] above). In the Tribunal’s opinion, this time lapse runs both ways, that is, for and against the Applicant. This opinion is based on the Applicant’s evidence at hearing that it only occurred to her to become unhappy about the fact of having used the fixer at the time it was formally brought to her attention that the document was counterfeit (transcript, page 68 [5]).
This, and a vast number of other circumstances in the context of the Applicant obtaining her Sudanese driver’s licence and using that licence for the period up to and including her application for citizenship (paragraphs [46(c)] and [48] above) were such that the Applicant, or any person in the Applicant’s position, would have known that the Sudanese driver’s licence was counterfeit. These circumstances are:
(a)Deciding to use the fixer (paragraph [34(a)] above).
(b)Her belief that the fixer was genuine (paragraph [34(e)] above) but conceding that she knew the fixer did not work for the issuing authority (paragraph [42] above).
(c)Her knowledge that fixers provide a service in exchange for a bribe (paragraph [35] above).
(d)Her knowledge she would obtain the Sudanese driver’s licence more quickly by using the fixer (paragraphs [37], [44(a)] and [44(c)] above).
(e)First stating she did not pay the fixer (paragraph [38] above), then conceding she had paid him once written evidence to the contrary was put to her (paragraph [39] above and transcript, page 38 [45] and 39 [5], [20]-[25]).
Further, in the circumstances summarised at paragraph 66 above, the Applicant’s ‘mistake’ in continuing to use the Sundanese driver’s licence cannot reasonably be described as ‘innocent’ in the way the Applicant has claimed (A1, page 6, paragraphs 20 and 21).

The Applicant’s evasiveness when giving evidence at times and subsequent clarity when earlier inconsistent documented evidence was then put to her further supports this conclusion.
The circumstances addressed above, in the Tribunal’s view, demonstrate that the Applicant knew the Sudanese driver’s licence she obtained could not have been genuine.

The fact that the Applicant continued to use the Sudanese driver’s licence, knowing it could not have been genuine and presenting it as part of her citizenship application, was deceptive and untruthful. The Applicant’s continued submission to the Tribunal that she did not know the Sudanese driver’s licence was counterfeit despite the process she undertook to obtain it is unconvincing and demonstrable of a continued refusal to accept responsibility for her actions. The Tribunal refers to the Policy and case extracts and paragraphs [22], [25] and [26] above in this context. Together, all of these factors weigh against the Applicant’s claim to good character for the purpose of s21(2)(h) of the Act. Further, the Tribunal considers there are no circumstances and/or an explanation provided by the Applicant which outweigh the behaviour in question, or serve to mitigate the Applicant’s reasons for its obtainment and use.
Character references
The Applicant has provided a number of character references in support of her application. These are contained within A4 (2 statements) and at R1, T16, pages 109 to 110 and T17, page 114. The Applicant submits that the three character references confirm that the Applicant informed the witnesses about ‘the licence being determined counterfeit by the respondent’ (A1, paragraph 36). Even here, the Applicant has phrased this submission as the counterfeit nature of the Sudanese driver’s licence being something that

the Respondent has determined
, rather than simply stating that the Sudanese driver’s licence is counterfeit. This, in the Tribunal’s view, is a further reflection on the Applicant’s failure to take full responsibility for her actions.
The Tribunal notes, in accordance with the Respondent’s submissions on the issue,[25]

that the Applicant’s character references are not set out in the form of a statutory declaration and make very little or no reference to the circumstances which resulted in the finding that the Applicant was not of good character. Further, none of the witnesses who have provided these statements were made available for cross-examination at hearing and hence their evidence remains untested. In the circumstances, and referring to the Policy (as extracted at paragraph [28]) limited weight can be placed on these statements.
[25] R2, paragraph 26.
CONCLUSION
For the reasons outlined above, the Tribunal cannot be satisfied that the Applicant is of good character for the purpose of s21(2)(h) of the Act.
DECISION
The reviewable decision, being the decision of a delegate of the Respondent dated
25 November 2019 to refuse the Applicant’s application for Australian citizenship by conferral, is affirmed.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

......................[sgd]..................................................
Associate
Dated: 28 October 2020

Date of hearing: 16 September 2020

Advocate for the Applicant: Meskerem Lemma Ashagrie,
Desire Australia Pty Ltd

Counsel for the Respondent: Daphne Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 4267

28 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date of hearing:	16 September 2020
Advocate for the Applicant:	Meskerem Lemma Ashagrie, Desire Australia Pty Ltd
Counsel for the Respondent:	Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers