Ghanbar and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 196

Ghanbar and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 196 (15 February 2024)
Division: GENERAL DIVISION
File Number: 2023/3581
Re:Jamil Latif Nader Ghanbar
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:15 February 2024
Place:Sydney

The reviewable decision dated 4 May 2023 is affirmed.
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Mrs J C Kelly, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – citizenship application refused – whether the applicant is a person of good character – the applicant’s reliance on incorrect information – applicant’s reasons for not disclosing correct information – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
BOY19 v Minister for immigration and Border Protection [2019] FCA 574
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
SECONDARY MATERIALS
Australian Government, CPI 15 – Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
15 February 2024
Introduction

This decision is about whether Mr Ghanbar (the Applicant) is a person of good character at the time the decision is made. That is one of the criteria he must satisfy to become a citizen of Australia. It is in paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).
The decision-maker was not satisfied that the Applicant was a person of good character because he had made a number of false and misleading statements to the Department of Immigration, Citizenship and Multicultural Affairs (the Department) in order to conceal his true identity, and to engineer a migration outcome for himself which weighed against his claim to be of good character.
The Tribunal is reviewing that decision which was made on 4 May 2023. The Applicant applied for citizenship by conferral on 10 August 2017.
Background to the decision
On 17 October 2019, the Department sent the Applicant an email requesting further information to support his claimed identity before he arrived in Australia, including any overseas identity document, to assist the processing of his application for citizenship. The email enclosed a Form 80 (Personal particulars for assessment including character assessment).
In an email dated 10 December 2019, the Applicant’s migration agent responded to the Department’s request for updated identity documents. He explained that the Applicant had asked him to assist him with the response. The Applicant ‘now wishes to correct his previously submitted information…before his citizenship application is being decided’. He provided untranslated Iranian identity documents.
On 28 January 2020, English translations of the Iranian identity documents were provided.
Over the next two and a half years, the migration agent provided further documents and statements in response to requests from the Department about what the Applicant now claims is correct information about his identity (correct information).
In the Form 80 (Personal particulars for assessment including character assessment) signed by the Applicant and dated 28 May 2020, the Applicant stated at question 25 his main reason for remaining in Australia:
Living with my wife and working to support my family and fear of leaving Australia because I have nowhere else to go but Iran where my conversion to Christianity attracts death penalty.
He also disclosed in answer to question 45 that one of his brothers lived in Australia (the Australian brother). In response to the question ‘Migrating with you?’, he had ticked the answer ‘Yes’.
In his letter of 28 May 2020, the Applicant explained that he made the mistake of listening to the agent working with the people smugglers and did not declare that they were brothers when they arrived in Australia.
On 17 May 2021, the Department requested that the Applicant provide details of any relatives that have migrated to Australia, their full names, dates of births and their relationship to him.
His migration agent responded on 25 May 2021. The Applicant knew that there might be a number of his relatives of Faili Kurd background who had migrated to Australia in the last few decades. He had and has no contact with them and does not know the names they use in Australia. He was prepared to allow the Department to check his phone communications in Australia. He only contacted his brother who lives in Melbourne with his family but ‘does not feel comfortable to ask (him) about this because he has mental and psychological issues and would not answer him but only get angry’.
The applicant’s reliance on the incorrect information
The Applicant knowingly provided to the Australian government and relied upon, what he now says is incorrect information about his identity (incorrect information), from his arrival in Australia from Iran as an Irregular Maritime Arrival (IMA) on 23 June 2010 until the 10 December 2019 email, including in his citizenship application dated 10 August 2017.
The Applicant relied on the incorrect information to be granted a protection visa on 14 August 2012 on the basis that he was stateless Faili Kurd from Iran. The correct information is that the Applicant, an Iranian citizen, had legally obtained an Iranian passport which he used to depart Iran and enter Indonesia. He destroyed it enroute to Australia for various reasons including that the people smugglers told him to.
The process leading to the grant of the protection visa began on 27 August 2010 when he applied for Refugee Status Assessment using the incorrect identity. On 14 October 2010, the Department advised the Applicant that he did not satisfy the relevant criterion. He applied for an Independent Merits Review (IMR) of that decision. On 21 September 2011 the IMR effectively affirmed the Department’s decision. On 27 October 2011, he appealed to the Federal Magistrate’s Court. On 13 March 2012, the Minister withdrew and the decision was remitted. On 2 May 2012, a new IMR decided that he was a refugee and the bar under the Migration Act 1958 (Cth) was lifted on 31 July 2012, allowing him to lodge an onshore application for protection on 6 August 2012.
He has lived his life in Australia using the incorrect identity and continues to do so. All documents issued to him in Australian including his Titre De Voyage, NSW Drivers Licence, baptism and marriage certificates, Medicare card, Bank Card, phone bill, and NSW Residential tenancy agreement, were issued based on the incorrect information, including his name. He is known to his friends and his clients by that name.
The Applicant has stated that he felt ashamed and guilty and was constantly thinking about the day he provided the incorrect information. He expressed regret and has apologised for providing it. He expressed his willingness to live an honest and Christian life.
The Applicant’s reasons for not disclosing the correct information from 2010 to 2019
In the 10 December 2019 response to the Department’s request for further information to support the Applicant’s identity provided in the citizenship application, his migration agent wrote:
…
According to (the Applicant), when he came to Australia as an IMA, he was mislead by the people he met on his way to Australia and they have encouraged him to claim being stateless.
Although the client is from the Faili Kurd background as it is reflected in his birth certificate attached (place of her mother’s birth) and his parents were expelled from Iraq to Iran, but they could gain Iranian citizenship after some time and naturally their children could gain Iranian citizenship too.
However, when he came to Australia, he was strongly suggested to claim being stateless and while he was fearful of being sent back to Iran after leaving that country due to a numerous reasons, he accepted to give incorrect information about his identification. But according to him, although he always wished to correct his information, due to his fear of being sent back to Iran he never dared to do that until now that he asked me to assist him to present his reasons and apology to the department also reflecting his real reason for coming to Australia and his fear of going back to Iran particularly now that he is converted to Christianity and married to a Christian lady also.
…
The Applicant has provided a number of explanations formulated in various ways for giving the incorrect information when he arrived. They can be summarised as:
·His immaturity and vulnerability as a 23 year old.
·He could not disobey his older brother (who is 22 years older than the Applicant) whom he feared, who obeyed the directions of the human traffickers to claim to be a stateless person born in Iraq, to a father born in Iraq, to have no education rights in Iran and not to declare to be siblings.
·Pressure from others on the boat to conform to the claims.
·He had borrowed money to come to Australia and knew if he returned, he would never be able to pay it back. He had no option to risk his life for a life.
A psychologist who treated the Applicant in 2011 and saw him again in 2016, appears to have become his friend. She provided a reference for him dated 7 August 2023. She did not give oral evidence. In her opinion, in 2011 he presented with symptoms that would meet the criteria of Post-Traumatic Stress Disorder and Major Depressive Disorder, Moderate. She believed that his decision to provide the incorrect information was influenced by poor mental health and immaturity, which led him to be vulnerable to the opinions of others, including the human trafficker, and by his fear of deportation to Iran.
In his letter of 28 May 2020 to the Department, the Applicant stated that he had a great challenge with his conscience and from time to time was thinking about a safe way of correcting the information he had given but his fear of returning to Iran and of possibly ruining the lives of the people who came to Australia on the same boat who were making the same claim to be stateless, did not allow him to correct his information until he was asked to complete a Form 80 and was preparing to take an oath for Australian citizenship. He could no longer live with this lie. He had embraced Christianity and married his Christian wife. He decided to write his statement and provide identity documents ‘and leave my destiny to Jesus Christ for saving me as I trust him as a living God and I wish to live the rest of my life as a Christian and by following his teachings’.
His wife had arrived as an IMA in early 2013. She had embraced Christianity in Australia. After they met in April 2015, she invited him to go to church with her. He began thinking about correcting the incorrect information when he met her. He was sorry that he had given that information and challenged himself to find a way of correcting it.
Their baptism certificates are dated 4 December 2016. He provided a photograph of his baptism by immersion. The Applicant and his wife moved to a different church in 2017. They were both born into the Shia Muslim background. The Iranian Islamic government does not recognise their Australian marriage and considers their relationship to be adultery. They would be subjected to imprisonment and lashes if they return to Iran. Conversion to Christianity attracts the death penalty in Iran. In addition, because of his conversion to Christianity, he will be imputed to hold the political opinion that he opposes the Islamic government.
The Applicant told the Tribunal that his main reason for not disclosing the correct information before he received the request from the Department dated 17 October 2019, was his concern about his brother, who lives in another State.
When they were in immigration detention, his brother told him that there were other people who had not brought the families with them and if the Applicant said anything that would cause them a problem, wherever he was in Australia, ‘we’ would find the Applicant and cause him trouble. The Applicant feared that his brother might hurt him.
The Applicant said that his brother is being treated for mental health issues. His brother committed an act of self-harm when he was in Iran which the Applicant attributes to his mental health issues. His brother spent 28 months in immigration detention which detrimentally affected his mental health. When he was released, he drank heavily. He was under medical supervision and was hospitalised for a while. He had physically abused his wife twice and was issued with an Apprehended Violence Order.
His brother had been trying to get his family to Australia. The Applicant was concerned that if he provided his Iranian identity documents to the Department, his brother’s identity would be revealed which may impact his ability to sponsor his family to Australia and detrimentally affect his mental health and he may self-harm.
The Applicant lived next to his brother before he came to Sydney in 2013. He did not speak to his brother or his family for five years after he left. In 2018 he called his brother and said that he wanted to come and see him because he had married, he and his wife had converted to Christianity, and he was ‘consciously uncomfortable’ and wanted to tell the truth. His brother said that his family is in Australia and the Applicant could say anything he wanted to. The Applicant was concerned that the visas of his brother’s family might be cancelled. He and his wife went to another state to visit his brother.
The Applicant explained that he did not provide the correct information from 2018 when he had the conversation with his brother until he received the 2019 request from the Department because he feared being deported.
He fears that if he returns to Iran, he will be ill-treated because he is Faili Kurd, as he and his family were before he came to Australia. He left Iran because of the financial and social hardship, and conflicts in that country. He also claims to fear returning to Iran because he is a failed asylum seeker and has converted to Christianity.
The Applicant’s life in Australia
The Applicant has provided a number of recent references, including from his church pastor, the psychologist whom he consulted in 2011 and 2016 who appears to have befriended him, a friend who works in administration in a large law firm, and a couple who work with two Christian organisations. All of them have known the Applicant for a number of years and regard him very highly.
Only the psychologist explicitly addressed the Applicant’s ‘mistake’ in giving false identity information when he arrived in Australia which he regrets and for which he accepts responsibility. Her expert opinion about his mental health in 2011 is set out at [20]. In 2016 they explored his Christian faith and his wish to live a life aligned with Christian values. He raised the discrepancies in his initial asylum application. In addition to treating him, she has seen him within the community. She fully vouched for his character. In her opinion, his past mistake, made under distressing conditions, should not overshadow his commendable life in Australia.
The Pastor said that he came to church to find peace and request prayers for his personal problems, he did not specify what those problems were.
His friend who is a Justice of the Peace and works in administration for a large law firm, stated that she was confident that the Applicant had learned from any mistakes made during his previous application process and taken proactive measures to address the issues raised, but did not state what the mistakes were.
The couple who work with Christian organisations referred to him voluntarily correcting information he initially provided as a young and stressed man in 2010, and talked about knowing other Iranian asylum seekers who have shared their traumatic vulnerability.
The Applicant is known to all the referees by the identity he assumed on his arrival in Australia.
The Applicant has worked as a painter and decorator since 2012. He has completed relevant courses and established his own business, employing Australians. He has purchased his own home.
He has no history of any relevant wrongdoing in Australia apart from providing the incorrect identity information. He has been hardworking and settled into the Australian way of life.
Consideration
In addition to his history of providing to the Australian Government incorrect information about his identity, including in his 2017 citizenship application, and relying on it until requested for supporting information more than nine years after his arrival, I have significant concerns about the Applicant’s truthfulness, as did the primary decision-maker. I accept some of his evidence, as did the delegate, but not all. I accept that during the entry interview, the interpreter incorrectly calculated the month of the Applicant’s birth from the Persian to the Gregorian calendar.
The Applicant’s fear of his brother
The Applicant first mentioned his fear that providing correct identity information may affect his brother’s legal status, and his concern about how his brother would react because he suffered from mental issues, in his statement dated 16 April 2021 and signed on 20 April 2021. I am satisfied that his brother has such issues and that the Applicant was very concerned as he claimed.
I am not satisfied that his brother posed a physical threat to him as he claimed during the hearing. He may have had such a fear as a young vulnerable person on the trip to, and following their arrival in Australia, when they were in close proximity. However, I am not satisfied that such a fear continued long after the Applicant left the city where his brother lived in 2013. They had lived next door to each other.
The Applicant did not disclose his correct identity information until after his brother told him he could.
The Applicant’s conversion to Christianity
Unlike the primary decision-maker I am not persuaded that the Applicant has genuinely converted to Christianity. I am concerned that his engagement with Christianity has been for the purpose of establishing a new, strong claim for protection in the event that the Australian government found out that he had provided incorrect information about his identity as a stateless Faili Kurd. A summary of his claims arising from his conversion is set out at [30]. The Applicant’s evidence was that his wife was granted permanent residence in 2019 based on two claims: that she had escaped an abusive relationship and her conversion to Christianity.
The psychologist wrote that the Applicant presented (for the second time) in 2016 through a Medicare Mental Health Plan. They explored his Christian faith and how he wished to live a life aligned with Christian values. He raised the discrepancies in his initial asylum application which he later corrected voluntarily.
The reason for the Medicare Mental Health Plan and referral to a psychologist and the treatment provided is not apparent. The psychologist identified him in his citizenship application.
On 1 May 2017, the Pastor wrote a letter in support of the Applicant’s wife’s visa application. He mentioned that she and the Applicant had previously attended another church and been baptised. They came to his church in January 2017 and liked that the sermons were interpreted into Farsi. They had become part of ‘our community’. They had been attending church every Sunday for four months and participated regularly in fortnightly meetings in members’ homes for prayer, worship and bible study. He interacted with them there and found their faith to be sincere and authentic. The Applicant’s wife had expressed her desire to go through pre-marital sessions with the church in preparation for a church wedding. ‘We have scheduled the course for them and will conduct a church wedding to them once the papers are in order’.

The Applicant’s Pastor wrote in his reference letter dated 1 August 2023, that in 2017 the Applicant and his wife came to his church to find peace and requested prayers for his personal problems. After some months of attending the church and receiving personal counselling from the Pastor, the Applicant became more settled and at peace with himself. Not long after, he received Jesus Christ as his personal Lord and Saviour and embraced Christianity fully. The Pastor described the Applicant’s extensive engagement in the activities of the church and attested to the authenticity of the Applicant’s Christian faith. The Pastor was aware of refugees ‘who feign their acceptance of a new faith in Christianity for the expressed purpose of smoothing their way to a visa or citizenship’. In his opinion, the Applicant ‘is certainly not one of them’.
The Applicant provided a photograph which included the annotation ‘Bible study with members of (the Pastor’s church) Early 2017’. He identified himself, his wife and the Pastor on the photograph.
The Applicant decided to apply for citizenship on 10 August 2017 voluntarily, and he deliberately provided the incorrect information about his identity that he had provided on his arrival in Australia.
The psychologist identified him in the identity declaration part of the citizenship application. The Applicant signed the declaration which included that the information he had supplied in the form ‘is complete truthful and correct in every detail’ and that he accepted that Australian citizenship involves reciprocal rights and responsibilities. ‘The responsibilities of citizenship include obeying Australian laws, including those relating to voting at elections and serving on a jury’.
He was unable to explain why he had applied for citizenship at that time and provided incorrect information.
The Applicant was not obliged to apply for citizenship. He had a choice. I infer that his reason or reasons for applying for citizenship was more compelling than was his conscience about providing the correct information or his faith in Christ, despite his Baptism and engagement with Christianity.
I find that the reasons he applied for citizenship in 2017 were his desire to visit his family in Iran or a third country, and to assist his wife if she returned to Iran and had difficulty because of her conversion to Christianity. He said that a Titre de Voyage was no good. He wanted to feel supported when he travelled. Around the time he applied for his Titre de Voyage in 2015 he had heard that others who had travelled had had their visas cancelled. I infer that those people had also claimed to be stateless Faili Kurds. He was very fearful that that might happen to him. He had good reason to be – he had provided incorrect identity information.
If I refused his application for citizenship, the Applicant said that he would be satisfied if I sent a letter to the Department requiring that his visa not be cancelled if he departed Australia using a Titre de Voyage. He would visit his father in a third country. His mother died 18 months ago. I understood him to say that he cannot travel to Iran using that travel document.
I accept that he fears returning to Iran. He risked his life on a ramshackle boat and spent 18 months in immigration detention. He values the life that he has established in Australia with his wife. He has a business and has purchased his own home. He would lose everything if his visa was cancelled while he was overseas.
The marriage certificate dated 17 February 2019 states that a civil celebrant officiated at the ceremony. The Applicant said that the Pastor was not licensed to officiate at a wedding.
The Pastor wrote in in his letter of 1 May 2017 that ‘We…will conduct a church wedding for them once the papers are in order’. That was apparently the plan at that time.
The ceremony in 2019 was not held in a church and the Applicant did not try to find a pastor who was licensed.
When asked whether a Christian ceremony was important, the Applicant’s answer was not responsive. It included that his wife had converted from the bottom of her heart and the Department had accepted that. My impression was that he expected his conversion to be unquestioned.
The Applicant’s conscience or his belief in putting his future in the hands of Christ, did not make him provide the information as soon as he had his brother’s permission, in 2018 or early 2019. He did so after he received the Department’s October 2019 request.
He said that he did not know what to do after the conversation with his brother but also said that he knew that he should approach a migration agent or a solicitor from 2017 or 2018 when he first concluded that he should provide the correct information. He was waiting for the opportunity to come.
When he disclosed the correct information in 2019, his wife had been granted permanent residence based on her claims of escaping an abusive relationship and having converted to Christianity, which in his words, the Department had accepted.
I am not satisfied that the Applicant’s conduct has been consistent with his claimed conversion to Christianity. I am not satisfied that his conversion to Christianity is genuine and not for the purpose of establishing a strong claim for protection in Australia, if or when the Australian government became aware that he had provided incorrect identity information to support his protection claim as a stateless Faili Kurd when he arrived.
What does ‘good character’ mean?
The Act does not define ‘good character’. The term, as used in the Act, has been considered in numerous court and Tribunal decisions.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, Lee J said 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 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.
I must reach an affirmative belief that the Applicant is a person of good character.[1]
[1] O’Bryan J in BOY19 v Minister for immigration and Border Protection [2019] FCA 574 at [55].
A useful summary of what the phrase ‘enduring moral qualities’ encompasses is set out in Citizenship Procedural Instructions (CPI) 15:
·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.
Comments made by Senior Member Puplick in Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082 are relevant in this case:
[82] Citizenship of Australia is regarded as a special privilege ... 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.
In Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35], Deputy President McMahon commented that the ‘observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications…”
Conclusion
The Applicant was not honest when answering questions in respect of his migration status when he arrived in 2010 or during the processes that followed until he was granted protection. He has lived his life in Australia using an identity which he now claims was not his true identity, until 10 December 2019. During that period, he was not honest when answering questions in his citizenship Application in August 2017. In each case he was seeking an outcome that benefitted himself.
For the reasons set out above, I am not satisfied that his claim to have converted to Christianity is honest and not because he is, again, seeking a beneficial outcome.
The reasons for his conduct may be understandable, but his conduct has not been the conduct of a person of good character.
Accepting that the correct information is correct, he now has the opportunity to live his life and demonstrate that he is a person of good character. He can reapply for citizenship in the future.
DECISION
The reviewable decision dated 4 May 2023 is affirmed.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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Associate
Dated: 15 February 2024

Date of hearing:

11 January 2024

Advocate for the Applicant:

Mr K Momeni, Click Australia Pty Ltd

Solicitors for the Respondent:

Ms H Anderson, Clayton Utz

Date of hearing:	11 January 2024
Advocate for the Applicant:	Mr K Momeni, Click Australia Pty Ltd
Solicitors for the Respondent:	Ms H Anderson, Clayton Utz