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

[2020] AATA 3728

HGTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3728 (3 September 2020)

Division: GENERAL DIVISION

File Number(s):       2018/7658

Re:HGTY  

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:3 September 2020

Place:Adelaide

The decision under review is affirmed.

............................[Sgnd].........................................

Senior Member B J Illingworth

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – application for citizenship refused – whether Tribunal is satisfied as to identity – whether Tribunal is satisfied Applicant is of good character – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Briginshaw v Briginshaw [1938] HCA 34

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

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

SECONDARY MATERIALS

Attorney-General’s Department, National Identity Proofing Guidelines, 2016

Australian Citizenship Policy (2016) (Cth)

Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)

REASONS FOR DECISION

Senior Member B J Illingworth

3 September 2020

INTRODUCTION

1. On 17 February 2015, HGTY (“the Applicant”) applied for Australian citizenship by conferral on the basis that he has a permanent or enduring impairment under s 21(4) of the Australian Citizenship Act 2007 (“the Act”). On 3 December 2018, a delegate of the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”), refused to grant the Applicant’s application for Australian citizenship because the delegate was not satisfied that the Applicant was of good character under s 21(4)(f) of the Act and was also not satisfied of his identity pursuant to s 24(3) of the Act.

2. At the hearing before the Tribunal, the Applicant appeared in person and was represented by Mr Robert Yeomans of Beena Rezaee Legal and Migration. The Respondent was represented by Ms Laura Butler, Australian Government Solicitor. The Tribunal was assisted by an interpreter in the Hazaragi and English languages.

   BACKGROUND

3. The Applicant was allegedly born in Urozgan, Afghanistan in or about 1973 and he and his family were refugees who fled to Pakistan and lived as illegal immigrants in Quetta. Also living with them was the family of the Applicant’s brother Mr R. Mr R resided in Australia and was granted Australian citizenship on 18 April 2007.[1]

   [1] Exhibit B, Supplementary T-Documents (“ST”), ST23/398.

4. On 28 February 2005, 19 November 2005 and 10 March 2009, the Applicant lodged three offshore Global Special Humanitarian (XB202) visa applications (“offshore visa applications”). These applications were refused on 4 March 2005, 12 December 2005 and 7 August 2009 respectively.[2] The Applicant’s brother, Mr R, was the proposer for each offshore visa applications. The first application was handwritten and prepared by Mr R. The subsequent applications were prepared by a migration agent with Mr R’s assistance.

   [2] Feb 2005 application: ST19/263-286 and ST20/304-305;

   Nov 2005 application: ST21/306-328 and ST22/335-336;

   Mar 2009 application: ST23/337-361 and ST26/419-421.

5. On 7 March 2010, the Applicant arrived in Australia at Christmas Island as an unauthorised maritime arrival.[3] On 16 February 2011, the Applicant was granted a Protection (XA866) visa.[4]

   [3] ST27/422.

   [4] Exhibit A, T-Documents (“T”), T2/8; ST37/534.

6. The Applicant provided generally consistent particulars in his explanations for his reason for leaving his place of birth. In summary, in March 2003 when living in Afghanistan, he was beaten by Pashtuns and rendered unconscious, which resulted in him suffering serious damage to his eyes. He fled to Kabul, Afghanistan to escape. He there had treatment on his eyes. He learnt that Pashtun men were looking for him in Kabul, so he purchased a false passport with the assistance of people smugglers and fled to Iran in April 2003. He remained there for a year and had further treatment on his eyes, including three operations.

7. The Tribunal was told, and accepts, that the Applicant has been declared legally blind. He needed the aid of a magnifying glass when giving evidence before the Tribunal.

8. The Applicant said that in April 2004, his wife, children and parents fled from Afghanistan to Pakistan. The Applicant joined them, and they lived in Quetta. Also living with them were the wife and children of his brother, Mr R. He and his family lived in Quetta as illegal immigrants in constant fear.

9. There were a number of discrepancies in the information recorded across the Applicant’s three offshore visa applications, arrival interview at Christmas Island and statutory deceleration, all of which were before the Tribunal.

10. In his two 2005 offshore visa applications, the Applicant provided the following personal details to the Department:

    ·his name is “Name A”, being four names.

    ·his year of birth is 1977.

    ·his wife’s year of birth is 1980.

    ·he has two daughters born in 1997 and 2003.

    ·he has three siblings, being two sisters and a brother.

11. In his 2009 offshore visa application, the Applicant provided the following details to the Department:

    ·his name is “Name B”, omitting one name from Name A, but otherwise being the same.

    ·his year of birth is 31 December 1977.

    ·his wife’s year of birth is 31 December 1950 (sic).

    ·he has four children, including the two daughters from his 2005 applications and an additional son and daughter (birth dates not provided).

    ·he has three siblings, being two sisters and a brother.

    ·the family name was consistently recorded.

12. In his onshore arrival entry interview at Christmas Island,[5] the interviewer recorded:

    ·that his name is “Name C”, being a variation of Name A and Name B but using a different last name.

    ·that his year of birth is 1973.

    ·that his wife is 35 years, making her year of birth 1975.

    ·that he had seven children, including the children listed in his previous offshore visa applications, an unnamed child born in 2010 and two older sons who were 15 years (“M1”) and 13 years (“M2”).

    ·that he had two siblings, being two sisters. No mention was made of his brother, Mr R.

    ·that he does not know anyone in Australia, has never communicated with anyone in Australia and that he, nor any member of his family has ever applied for a visa to enter Australia.

    [5] ST28/423-446.

13. In his statutory declaration dated 8 May 2010, the Applicant similarly declared:[6]

    ·he is 37 years of age, making his birth year 1973.

    ·that he and his wife were married in 1993.

    ·that he has seven children, being four sons and three daughters ranging in age from three months to 15 years.

    [6] ST30/483-486.

14. Following his arrival in Australia, the Applicant consistently used Name C with a date of birth of 1973. On 14 August 2017, the Applicant’s representative sent to the Department an email attaching, amongst other documents, a Form 80 and 956, [7] which included the following details:

    ·his year of birth is 1 January 1973.

    ·his wife’s year of birth is 1 January 1975.

    ·he detailed that he has five children, not including M1 and M2.

    [7] T10/161-181.

15. The Applicant’s representative also provided the Department with a copy of the Applicant’s taskera together with an English translation[8] which provided that the Applicant’s year of birth is 1973/4 and that he was thirty-two years old in 2004/5.

    [8] T10/182-184.

16. The Department obtained a translated verification of the Applicant’s taskera which reads, ‘Due to variation of grandfather’s name and age of [the Applicant] … registration CANNOT be certified.[9]

    [9] Exhibit F.

17. After the hearing concluded, the Applicant was given the opportunity to provide further evidence. He had previously lodged an Age Correction Form[10] to correct his date of birth on his taskera and was awaiting a response from the Afghan authorities. After the conclusion of the hearing, the Tribunal subsequently received a bundle of documents which are now marked Exhibit L and includes the following documents:

    (a)age-amended taskera issued by the Afghanistan Central Civil Registration Authority – issued 7 March 2020.

    (b)English translation of the above age-amended taskera.

    (c)NSIA Verification of the age-amended taskera – issued 7 March 2020.

    (d)English translation of the above NSIA verification.

    (e)Afghan Citizen Cards of the Applicant’s immediate family members.

    (f)“Afghanistan: Taskera, passports and other ID Documents” – LandInfo report.

    (g)“The Structure of Afghan Names” by Karine Megerdoomian.

    (h)scanned copy of the support letter of the Afghan United Association dated 29 July 2019.

    [10] Exhibit I.

18. Amongst that material was the age amended taskera. It was argued that the Applicant had undertaken a legitimate procedure to correct an error in the previous taskera issued in 2019, namely an incorrect year of birth of 1977/8. The correction said he was registered as 27 years old in 2004/5 which was corrected to 46 years old in 2019/20. This validated taskera, therefore gives his year of birth as 1973.

19. Hence, the Tribunal had before it four taskeras, which in the Respondent’s written closing submissions is detailed as follows:

    26.In relation to the applicant’s taskera, the applicant has presented four taskeras to the Australian Government:

    26.1taskera … issued in 2004, with his year of birth translated as 1978 (old taskera)

    26.2taskera … issued in 2004, with his year of birth translated as 1973. This is the taskera that the Minister sent for verification. Those results were that it was not able to be verified because the applicant’s age was fraudulently altered (fraudulent taskera)

    26.3taskera … issued in 2019, with his year of birth translated as 1977/1978. This is a duplicate taskera issued on the basis of the authorities’ records (absentee taskera)

    26.4taskera … issued in 2020, with his year of birth translated as 1973. This is the taskera the applicant obtained from the Afghan authorities after amending his age (age-amended taskera).

20. The Afghan Citizen Cards for the Applicant’s wife records her date of birth is 1 January 1977.

21. On 14 November 2017, the Applicant received an Invitation to comment letter dated 14 November 2017.[11] The Invitation included a chance to comment on, amongst other issues, the failure of the Applicant to name his brother, Mr R, in his application for conferral of Australian Citizenship lodged 17 February 2015, and in the entry interview at Christmas Island dated 7 March 2010. In an application for spousal visa dated 30 July 2013, the Applicant also omitted reference to his two older sons, M1 and M2.

    [11] T15/220-227.

22. The Applicant replied to the Invitation to comment by a statutory declaration signed and dated 19 February 2018.[12] He declared he was legally blind and was very vulnerable and relied on the guidance of others, including people smugglers. People smugglers advised him of what to say and what not to say to Australian authorities. They advised him not to mention his brother, Mr R, to Australian authorities. He admitted he did not tell the truth about his family composition by not mentioning his brother.

    [12] T17/241-243.

23. He expressed his remorse for not telling the truth and was embarrassed by his failure to be completely honest with the Department.

24. He then explained the exclusion of his two eldest children, M1 and M2. He declared that he had not included them because they were not his biological children. He declared they were his sister’s children. Their father was killed by the Taliban in 2002. His sister cared for them until 2009 when she brought them to Pakistan. She said she could no longer care for them, and “begged” him to adopt them. He declared that he cared for them and regarded them as his own children. He stated that in 2013, a bomb blast in Quetta killed 84 people and left more than 200 injured and that both boys were killed in that blast. He said he was devastated by their deaths.

25. The Applicant declared that there was no adoption procedure in Afghanistan and hence, he could not provide an adoption certificate, but he included them in his entry interview and his visa application and that he and his wife included them in their Global Special Humanitarian Visa application, which they withdrew in May 2013.

26. The Applicant then declared:[13]

    I satisfy the eligibility criteria of good character because I am deeply remorseful and regretful for my mistakes. My past actions do not represent my moral values and I know that I will not undertake deceptive conduct again.

    [13] T17/242.

27. The Applicant subsequently provided to the Department two translated death certificates in respect of both M1 and M2,[14] which were purportedly signed and sealed by the Acting Consulate General dated 20 February 2013, saying that each was killed in a suicide attack in Quetta on 16 February 2013.

    [14] ST?/682-683

28. At the commencement of the hearing before the Tribunal, the Applicant admitted that neither boy was killed in a bomb blast. They had relocated from Quetta and no longer wanted to come to Australia. He said that he declared they were killed in a bomb blast and then arranged for false death certificates to be created by someone he knew in Pakistan that produced bogus documents. He had to pay a fee. His wife collected the bogus documents knowing they were bogus and sent them to the Applicant who lodged them with the Department.

    THE ISSUES BEFORE THE TRIBUNAL

29. The issues to be determined by this Tribunal are:

    (a)whether the Tribunal is satisfied the Applicant is of good character for the purposes of s 21(4)(f) of the Act; and

    (b)whether the Tribunal is satisfied of the Applicant’s identity pursuant to s 24(3) of the Act; and

    THE LAW AND LEGISLATIVE FRAMEWORK

    The Standard of Satisfaction

30. There was for, some time, a divergence of Tribunal decisions about the legal test to be applied to be satisfied about a particular fact. The question was considered in BOY19 v Minister for Immigration and Boarder Protection (‘BOY19’).[15] There the Minister argued that the grant of a certificate of citizenship is a document of “extraordinary significance” and as such it was appropriate to have regard to the principles in Briginshaw v Briginshaw (‘Briginshaw’)[16] and, hence, a higher level of satisfaction was required. The Member decided that the Briginshaw test did not apply and that the level of satisfaction to be met was one of “reasonable satisfaction”. In BOY19, O’Bryan J confirmed that approach by the Member was the correct approach to be applied by the Tribunal.

    [15] [2019] FCA 574 (‘BOY19’).

    [16] [1938] HCA 34 (‘Briginshaw’).

31. Hence, in considering the evidence with respect to both identity pursuant to s 24(3) and good character pursuant to s 21(4)(f) of the Act, the appropriate test is one of reasonable satisfaction. It is agreed by both the Applicant and Respondent that reasonable satisfaction is the correct test to be applied.

    Identity requirement

32. Section 24(3) of the Act provides:

    The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

33. The Explanatory Memorandum, Australian Citizenship Bill 2005 states:

    [The Act] makes clear that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

34. Further, Chapter 13 of the Australian Citizenship Policy (“the Policy”) of June 2016 provides that:

    Overview of the identity provisions

    The identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person's identity.

    In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person's identity.

35. The Attorney-General’s Department’s National Identity Proofing Guidelines (“the Guidelines”) refers to the concept of identity as ‘not a fixed concept; it is highly dependent on context’.[17]

    [17] Attorney-General’s Department, National Identity Proofing Guidelines, Chapter 2.1, 2.1.1.

    Good character requirement

36. Section 21 of the Act sets out the eligibility criteria to become an Australian citizen. Relevantly, s 21(4)(f) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time that the decision is being made.

37. The term “good character” is not defined in the Act; however, there is guidance on the application of the good character requirement in the Policy. The Tribunal is not bound to apply the Policy; however, should give regard to and apply the Policy unless there are cogent reasons not to do so.[18] The Tribunal is not aware of any cogent reason why it should not take the Policy into consideration in this case. 

    [18] Re Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634.

38. Chapter 11 of the Policy sets out the relevant legislative requirements and policy guidelines for Australian citizenship where good character is involved. It states:

    ‘Good character' refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.

39. In Irving v Minister for Immigration, Local Government and Ethnic Affairs[19] 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 the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion … A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character … Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

    [19] (1996) 68 FCR 422.

40. Chapter 11 of the Policy also sets out the phrase “enduring moral qualities” encompassing the following concepts:

    ·characteristics which have been demonstrated over a long period of time

    ·distinguishing right from wrong

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

41. In BOY19 O’Bryan J, after reviewing the various authorities, summarised the expression good character as follows, at [51]:

    The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions … Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.

1. The Policy outlines the characteristics of good character as:

   §respect and abide by the law in Australia and other countries

   §be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)

   §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

   §involvement in bogus marriage

   §concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship

   §involvement in Centrelink or Australian Tax Office fraud

   §giving false names and/or addresses to police

   §not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)

   §not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia

   §not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people

   §not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide

   §not be the subject of any extradition order or other international arrest warrant

   §not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and

   §not be the subject of any verifiable information causing character doubts.

2. 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. A decision maker needs to look holistically at an Applicant’s behaviour over a lasting or enduring period of time.

   THE DEPARTMENT’S FINDINGS

3. In the delegate’s decision to refuse the Applicant’s application for Australian citizenship by conferral, the delegate made a number of findings, including that:

   (a)since 2005 the Applicant has provided three different identities to the Department and that there is no clear indication as to which is his true identity.

   (b)the Applicant has provided the same identity document as evidence of his identity on two different applications before the Department, with both applications having varying names and dates of birth.

   (c)an email received by the Department dated 15 September 2017, in response to information requested, stated that the Applicant’s visual impairment was significantly better when he resided in Pakistan; however, has deteriorated over the passing years.

   (d)as expressed in the Invitation to comment letter, the Applicant has provided various family compositions to the Department which does not allow for an accurate reflection of his true family composition.

   (e)the Applicant’s provision of fraudulent identity information and misleading family information to the Department have raised concerns about his identity. He has not satisfactorily addressed these concerns. The provision of false personal and family composition information and lack of disclosure of previous applications before the Department is not indicative of someone who is of good character.

   THE EVIDENCE BEFORE THE TRIBUNAL

   The Applicant

4. The Applicant gave evidence with the assistance of an interpreter. He confirmed his full name is Name C. His date of birth is 1 January 1973. He was born in Afghanistan of Hazara ethnicity and Shi’a Muslim religion. He did not know his exact date of birth. In Afghanistan, most people are uneducated and exact dates of birth are not recorded. Births are remembered by reference to specific events occurring in the calendar year. In his case there was no such event, but his father completed military service one year after his birth and, hence, his date of birth was calculated as 1973.

5. As for his parents, the Applicant said that references to their dates of birth in the material before the Tribunal was uncertain, but they were married when aged approximately 20 or 21 years of age.

6. In reference to his surname from Name C, he said ordinary people in Afghanistan do not have surnames. At school, people chose surnames for themselves, but those names were not necessarily connected to the family. Teachers would often choose a surname, and his teacher picked out the surname, Name C.

7. The Applicant said that his wife did not have a family name and when she applied to come to Australia, she chose the surname, Name C. He thought that she was one to two years younger than him. He remembered when he got married his father-in-law said she was two years younger than the Applicant. He said that he thought the date of marriage was 1996 or 1997. That marriage was in his family village.

8. The Applicant confirmed that he had five children. He has three siblings, namely two sisters and one brother. His older sister has lived in Kabul, Afghanistan for the last eight to nine months and his younger sister is also living in Afghanistan, in his village at his family home. His brother, Mr R, was one or two years older than the Applicant and lives in Australia.

9. The Applicant said that in Afghanistan he went to a traditional school and could read and write Farsi and Hazaragi languages. When he came to Australia, he could not speak English, so he went to TAFE but had to stop going because of headaches. Nonetheless, he said he can read and write basic English.

10. The Applicant explained the circumstances leading to his limited eyesight to which he referred in his application for citizenship. He said that the Taliban entered his village in about 1998 or 1999. They were an extremist group. It was their strategy to enter a new village and torture the men. The Applicant was tortured and beaten. He said his vision was initially okay. He started to have vision problems approximately two to three years after he was attacked, and his vision has gradually deteriorated since. When he was living in Pakistan, he was having difficulty including blurred vision which slowly got worse.

11. Since coming to Australia his vision has worsened. He said he was now blind in his left eye and had poor vision in his right. He said he could not see the Senior Member from the witness box. His sight limitations resulted in difficulty obtaining employment. He does not hold a driver’s licence and has difficulty shopping. He cannot find work. The Applicant said he was able to read because he was given a vision aid. It was a type of magnifying glass.

12. The Applicant explained how he obtained the taskera used in his application for citizenship. He said at the time he was living in Pakistan and his brother was in Australia. His brother came to Pakistan and together they went to Afghanistan. His brother’s father-in-law had a “connection” who they met. Photographs were taken and personal details including, date of birth, family details were given. His brother’s father-in-law was a witness. The Applicant did not have any identification documents. The authorities relied on the father-in-law for the purpose of identification. He had lost the taskera he obtained as a child.

13. Th Applicant said he believed the taskera was genuine. In 2016, his family, including his father, went to Afghanistan and took the Applicant’s taskera with them. His wife also took her father’s taskera. He said his family obtained their taskeras based on his own taskera. 

14. The Applicant said he made three offshore visa applications before coming to Australia. The first was handwritten application made in early 2005. His brother brought it to Pakistan and the Applicant signed it. The second application was typed with the assistance of a migration agent engaged in Australia by his brother. A friend of the Applicant’s brother who travelled to Quetta brought him the application form, which he signed and returned. That friend took the form back to Australia. By that time his vision had worsened, and someone read the form to the Applicant. The third application followed a telephone call with a migration agent. The Applicant gave a statement. He thought his brother may have interpreted the conversation.

15. The Applicant was asked how he travelled to Australia. He explained that he did so with the assistance of people smugglers. He travelled from Quetta to Karachi; he was given a passport and taken to the airport. He then left by plane to Malaysia where he stayed for three nights and was then taken to the port when he boarded a boat to Australia. The people smugglers provided food and everything he needed. He said that he followed their instructions.

16. The Applicant admitted that when he arrived in Australia, he did not declare that he had a brother who was living in Australia. He said that people smugglers suggested he not disclose that he had a brother in Australia and that if he declared that fact he would be deported. The Applicant apologised to the Tribunal for this deception.

17. The Applicant then referred to his two older children he named in his arrival interview namely, M1 and M2. M1 is his sister’s son and lived with the Applicant’s family in Quetta. M2 is his cousin. M2’s parents are alive. He said that after an explosion they left Quetta and have now relocated.

18. Counsel referred the Applicant to a statutory declaration dated 19 February 2018.[20] The Applicant was asked why he declared M1 and M2 are not his biological children and that they are the sons of “G”. He said he was thinking that he could provide assistance to them both in Australia. They had been living with his family and he counted them as family members.

    [20] T17/241-242

19. Counsel for the Applicant referred him to paragraph [18] of that statutory deceleration, in which he declared that both M1 and M2 were killed in a large blast in Hazara Town, Quetta and asked why he declared they were deceased. The Applicant said that the situation in Pakistan is difficult for Hazara people. He said that he was advised by people in Pakistan to get death certificates for M1 and M2. The Applicant said that he decided last year to tell the truth about M1 and M2 at the hearing and now feels better about being truthful before the Tribunal. He said that he had been suffering mental health issues and feeling guilty about being untruthful.

20. The Tribunal then asked the Applicant a number of questions directed to this deceit. The Tribunal referred the Applicant to email exchanges between the Department and his solicitors between August and September 2017, in which it was said the two boys ‘were not included in any further sponsored offshore application because they were killed in a massive suicide attack in Hazara Town and are no longer alive’.[21] The Tribunal asked how he came up with this lie. In response, the Applicant said that the only reason he included them in his arrival interview was to assist them and that he made a mistake.

    [21] T12/187.

21. The Tribunal asked the Applicant three times, ‘who recommended you tell this lie’. His initial responses ranged from getting the idea by talking to other people, that it was the shortest and easiest way to say they had died, and that it was discussed in a gathering or meeting with community people in Pakistan, being people in positions of authority. After the third time posing the question to the Applicant, he answered the question. He said that the person who recommended he tell this lie is a pharmacist he knew in Pakistan. That person was involved in producing false documents, and that the Applicant ‘went to him, this was the easiest way’. The Applicant spoke to his wife. The Applicant’s wife approached the pharmacist. She was given a price for producing the documents. The Applicant sent the money to his wife, which was approximately $110. His wife collected the documents and sent them to the Applicant, who then produced them to the Department. The Applicant said his wife is uneducated and that she collected the documents at his direction. The Applicant said that it was his idea to include M1 and M2 as their children in his arrival interview.

22. In cross-examination, the Applicant said he was given the Name C by his teacher in primary school. He denied using the surname Name A and Name B. He said it was not his idea to use the Name A and Name B. He denied using the Name C when interviewed in hope of a more favourable visa application given that he had previously failed three times.

23. The Applicant was cross-examined about the circumstances leading to his 2009 offshore visa application. He clarified that his brother was not the interpreter, but helped by telephoning the Applicant, advising him that an interpreter was on the line. He remembered giving his neighbours telephone number for them to ring him. There was no land line to his home.

24. The Applicant was questioned about inconsistent evidence with respect to his date of birth. His offshore visa applications, Departmental arrival interview and forms variously gave dates of birth as 1977, 1 January 1977, 31 December 1977. He was referred to the Taskera and its translation dated 12 March 2009, which recorded his date of birth as 1978. The Applicant said that these dates of birth were wrong. He said he was at school in 1978. He said that in respect of the 2009 visa application, only the signing page was sent to him which he returned. He agreed that he acknowledged the whole of the document was true and correct without seeing the whole of its content. He said he did not look at his taskera when he gave his statement.

25. He said in his country, documents are viewed in a different way because of a different system. Insofar as a lady assisted him with translating the first visa application, he could not remember if the lady asked his age. He could not remember the outcome of the visa applications and was confused about the lodging of them.

26. The Applicant was asked to explain the change of surname from Name A and Name B to Name C. He said no-one knows him by the Name A or Name B. At his arrival interview he did not think about his previous visa rejections and therefore gave the Name C. He admitted that he did not disclose that he had a brother in Australia but denied doing so because of the previous failed visa applications. However, he acknowledged that insofar as he failed to disclose that he has a brother in subsequent documents such as the Form 80 and his application for citizenship by conferral, the Applicant said that he was worried that if he declared that he has a brother it might affect his application. He accepted that he maintained the lie because of prejudice he may suffer if he told the truth. He accepted that once you make a mistake, it is very hard to rectify that mistake.

27. The Applicant was cross-examined at length about his taskeras. The first was issued when he was a child. There was no photograph attached to it. That taskera was lost. 

28. In relation to the second taskera he realised in about 2016, following communication with the Department that the date of birth was incorrect. He had asked a friend to convert the date to the Gregorian calendar and realised there was a four-year difference in his given and actual date of birth. Insofar as the date of birth was fraudulently changed, he said he contacted his wife in Quetta and asked she contact an agent whom he trusted to arrange for the date of birth to be changed. He later found out that the change was not a genuine change. 

29. The Applicant rejected the proposition that he caused the taskera to be changed to match the date of birth on his citizenship application. He remained adamant that his year of birth was 1973.

30. The Applicant and his wife were married in 1996, as evidenced in his marriage certificate.[22] However, he admitted that his arrival interview at Christmas Island, he lied saying his date of marriage was 1993 to make more believable that M1 and M2 were his children.

    [22] T14/213-219.

31. Insofar as there were inconsistencies in dates of birth relating to his family members, the Applicant maintained that dates of birth were estimates and any inconsistencies could include errors in converting the Persian and Gregorian calendars. The Applicant said in respect of his inconsistent ages that when he arrived in Christmas Island, he told the Department that he was 37 years of age and he guessed his wife was two years younger.

32. Counsel for the Respondent asked the Applicant to explain why his older brother, Mr R has the same year of birth as the Applicant namely 1973. The reason, he said, was that Mr R may have also provided an estimate when he arrived in Australia. No-one had a birth certificate.

33. The Applicant was again cross-examined about M1 and M2 and his deception in relation to their deaths. He accepted he that in response to the Invitation to comment, he said they were both his nephews. He agreed he provided false death certificates describing himself as their father to support that they were in fact his children. He lied in the statutory declaration by saying they were deceased. He accepted that he did not previously take the opportunity to tell the truth which was his mistake. But when called to the Tribunal and having to give an oath on the Koran, this, he said, was different. He decided to tell the truth. He said that if he were to continue to lie it would stay with him for ever.

34. Counsel for the Respondent asked whether he thought a person of enduring moral quality would maintain this lie. He said it was hard to explain given the country he comes from. He accepted he lied and at that time he did not have a positive character but finally he has told the truth. He acknowledged he had the opportunity in 2018 to “come clean” but did not do so because of advice that he got from others. He said that he signed the statutory declaration but when he had to come to the Tribunal, he challenged himself and he made the decision to now tell the truth.

35. Counsel referred the Applicant to a character reference of the Imam Ali Mosque and Islamic Centre of South Australia dated 18 June 2019.[23] That reference gives testimony to the Applicant’s active participation in the community. The author was aware of allegations that he had not been truthful about his family composition and had provided inconsistent information regarding his identity. The author referred to his active rehabilitation and aim to improve and maintain behaviours as evidence of his good character. The Applicant said the author was not aware of the lies. He was asked for a character reference based on his knowledge of the Applicant.

    [23] Exhibit D.

36. A further character reference was received from Mr JN dated 23 July 2019[24] who said that behaviour of fraudulent activity would be out of character and would be due to lack of literacy and his disability. The Applicant conceded Mr JKN was not aware of the lies. Those lies he accepted, were not due to his literacy issue, but occurred out of a desire to help M1 and M2.

    [24] Exhibit C.

    Mr R – the Applicant’s brother

37. Mr R said he is approximately two years older than the Applicant and that his date of birth was 1 January 1973. He said he was given this date of birth as an estimate when he arrived in Australia 2001. He had no formal document evidencing his date of birth.

38. Mr R said he was the eldest of four siblings, namely one brother, the Applicant, and two sisters.

39. Mr R said he was involved in all three of the Applicant’s offshore visa applications namely two applications in 2005 and one application in 2009. He was the proposer in each application. He said that at the time he also wanted the sponsor the Applicant’s family as well. He said the Applicant had problems in Pakistan which were mainly safety and security issues. He was a refugee from Afghanistan without papers which gave rise to his safety concerns. It was safer for him to come to Australia.

1. Mr R received assistance from Legal Services Commission in the preparation of the first two offshore visa applications. They were assisted by an interpreter. The third application was completed by a migration agent, again, with the assistance of an interpreter. The majority of information in each application was provided by Mr R. He did not need to ask the Applicant many questions and was able to complete most of the forms from his own knowledge.

2. Mr R sent the completed application forms to the Applicant to sign and return. In respect of the second and third typed written applications he sent the page with the signing clause to the Applicant to sign and return.

3. In reference to the family name used on the application forms, Mr R said that he used the same surname as Name A and Name B as his brother surname. He said that his family did not have a surname in Afghanistan or any identification documents in relation to a family name. The surname was selected for them and there was not one surname for the family.

4. Mr R said that in Afghanistan he said the Applicant was known as Name C and that he added that name as part of the Applicant’s name in the offshore visa applications. He said his grandfather’s surname was similar to Name A and Name B and his uncle and other family members were Name A and Name B. He said that the Applicant went to a mosque to study as a child of about 10 or 11 years of age. He did not have a surname and a different surname was selected for different students. His brother was given the surname Name C.

5. Mr R said he was a citizen of Australia. In describing the Applicant’s character, he had not seen negative risks, or any negative aspects of his brother and said that he was not a danger. His reputation in the community was a good and a positive reputation. Mr R and the Applicant go to the same mosque and people of that mosque are happy with the Applicant. There has been nothing negative raised about the Applicant.

6. In cross-examination, Mr R was asked about the circumstances leading to the preparation of the offshore visa applications. He recalled that in relation to the latter application, the migration agent required a telephone number so she could telephone and speak with the Applicant. She wanted to speak to him and make sure that he was in Pakistan.

7. Mr R said that he took the first handwritten application with him when he went to Pakistan to visit. As for the second and third application, he repeated that he sent the signature page to the Applicant to sign and return.

8. When preparing the three applications, he was in regular contact with his brother. He may have asked about the date of his marriage because there was no official marriage certificate. He said in his own case he had a letter but no formal document. The date of marriage was an estimate.

9. Mr R was asked to explain why, if he knew his brother’s surname was Name C, he used the surname Name A and Name B. He said he did not believe that Name C was his family name and he wanted him to have what he believed was his family name. He told the Applicant that he had put the surname Name A and Name B in the application. He said that this was his idea because he thought there if there were different surname there might be questions about whether he was in fact his brother.

10. In relation to the first application, which he took to Pakistan for the Applicant to sign, he said the Applicant decided that the year 1977 was the year of birth. In any event he could not be sure of the Applicant’s year of birth as he could not be sure about his own birth date.

11. Mr R did not know that the Applicant had used the surname Name C and date birth of 1973 when he came to Australia. Further, he did not know until recently, that when he arrived in Australia the Applicant did not declare that he had a brother.

12. The Applicant lived with Mr R and his family for some time after his arrival in Australia. He confirmed the Applicant had five children.

13. Mr R said that it was only recently that the Applicant told him that he included M1 and M2 as his children when he arrived in Australia. He said he told the Applicant that was a wrong decision. He said that the Applicant told him that he did this because he wanted to help both children. He also said that the Applicant recently told him about obtaining fraudulent death certificates for both M1 and M2. Mr R did not know that in 2017 the Applicant had received an Invitation to comment and that he said both boys were his nephews and were deceased. He only recently became aware of that prior to the Tribunal hearing.

14. When asked if this deception affected his opinion of the Applicant’s good character, he said it was not only about his brother, but it was about the children and a safe place for them to live. If any of them decided to tell the truth there were concerns that he would get in trouble. He said most documents one obtained in Pakistan are not genuine.

    CONSIDERATION

    Identity

15. The identity of the Applicant remained an issue in this application. Various documents have been received into evidence which enliven concern about the Applicant’s name, family composition, date of birth of the Applicant, dates of birth of his family members and the credibility and reliability of the Applicant because of his lies in the statutory declaration and fraudulent or bogus documents brought into existence by, or at the request of the Applicant. Insofar as there is evidence before the Tribunal which, by his own admission, were the product of the Applicant’s admitted lies and deception, the Tribunal has also had regard to such evidence in deciding whether the Tribunal can be reasonably satisfied about both his identity and his character.  

16. The Applicant does not come from a sophisticated background. He is legally blind following head injuries suffered in a beating by members of the Taliban when he was living in Afghanistan. He has endured hardship in fleeing Afghanistan and relocating to Pakistan via Iran. He arrived on Christmas Island as an irregular maritime arrival in April 2010. Given the additional burden of his disability, that journey to Australia could not have been easy for him. He has said that, because of his disability he has, on occasion, relied on the advice of others, particularly people smugglers who brought him to Australia. He has been separated for extended periods of time from his wife children and other family members who now live in Quetta.

17. Those personal matters engender much sympathy for the Applicant and are also relevant considerations in assessing is evidence with respect to such facts in issue including the reason for his deceptions.

    The Applicant’s name

18. At the conclusion of the hearing, the Applicant provided written closing submissions together with a publication entitled, The Structure of Afghan Names by Karine Megerdoomian. That publication explains that a person’s name in Afghanistan is different in structure from Western society. It reads, ‘Afghans traditionally use only a first name and generally lack a last name.”[25] Further, most Afghans would not have a last name but may choose one, particularly if they are in contact with other cultures. I accept that evidence, which corroborates the Applicant’s evidence in relation to his surname.

    [25] Exhibit L, MITRE, The Structure of Afghan Names (2009), 1.

19. An issue in this matter was both the different names and surnames of the Applicant. The Respondent did not dispute that in Afghanistan people may not have surnames and have surnames given to them. That was the evidence of the Applicant. He said that at school he was allocated the surname Name C. I accept that evidence.

20. However, in his three offshore visa applications, he is variously described as Name A and Name B. The Applicant’s brother, Mr R, who then lived in Australia was the proposer of those three applications. He was responsible for preparing them with the assistance of the Legal Services Commission or a migration agent. He said he was responsible for populating much of the content of those applications. He said that he was the person who decided to use surname Name A and Name B to give consistency to the family name and so that government authorities would not suspect that the Applicant and he were not brothers.

21. Mr R also said in evidence that in relation to the first handwritten application, he took that document to Pakistan, the Applicant signed it, and he returned to Australia with that application. It was handwritten in English and a person in Pakistan assisted the Applicant by taking him through the document. As to the second and third applications, only the signing page was sent to the Applicant for his signature and return of document. I accept that evidence as it relates to the preparation of all three applications. Hence, in respect of the first application when taking into account the Applicant’s disability, his lack of English and the assistance given by another to translate its content, I am reasonably satisfied that the document did not receive careful scrutiny that one might reasonably expect. As for the second and third applications the Applicant’s only contribution was the signing of the last page.

22. However, Mr R said in evidence, and I accept, that he told the Applicant that he had used the surname Name A and Name B in the offshore visa applications. So, when the Applicant was interviewed on Christmas Island and used the surname Name C, that in and of itself was not dishonest. However, insofar as he said that he did not know anyone in Australia and had never communicated with anyone in Australia, that evidence is troubling.

23. The Applicant’s explanation was that he had been told by people smugglers not to disclose that fact of his brother living in Australia, for fear of deportation. Were that the only deception made by the Applicant I might be inclined to accept it. However, the Applicant named for the first time in his arrival interview M1 and M2 as his eldest children, and he lied about the date of his marriage to give legitimacy to M1 and M2 being his children.

24. The Applicant must have known that the three failed visa applications previously prepared and or lodged with the Department by his brother Mr R, including the third application in 2009, did not include reference to M1 and M2. Further, he knew the applications gave him the surname Name A and Name B. His deception was planned and well thought out. I am not reasonably satisfied that he did not disclose his brother’s details on advice from people smugglers. I am reasonably satisfied that the Applicant was endeavouring to deliberately distance himself from those failed applications, and from his brother, in hope of a favourable visa outcome upon arriving on Christmas Island, which was further driven, by the desire to have M1 and M2 join him in Australia along with his other family members.

    The Applicant’s date of birth.

25. The Applicant has provided varying dates of birth. Prior to coming to Australia his year of birth is generally said to be 1977. The 2009 translation of his taskera gives his year of birth of 1978. However, in his arrival interview on Christmas Island he said his year of birth is 1973; and since that time, he has maintained 1973 as his year of birth. His older brother Mr R also has a date of birth of 1 January 1973.

26. I accept that it is not uncommon for Afghans to be unsure of their date of birth and that dates of birth are often a mere estimate. The Applicant said in evidence that upon noting that his passport and taskera gave an incorrect date of birth he tried to amend the taskera. The first attempt resulted in a fraudulent amendment. The second has resulted in what is said to be a bona fide certified amendment, albeit not yet satisfactorily confirmed by the Department.

27. In so far as much of the initial material, prior to the Applicant’s arrival in Australia, was presented to the Respondent by Mr R who populated most of the documents, it is understandable that human error may explain the 1977 year of birth. However, other official documents, such as the Applicant marriage certificate and passport, reflect the same year of birth of 1977. It is unclear upon what basis an amendment to the Applicant’s age referred to in his taskera could be validly made based simply upon an assertion, by the Applicant, that he was born in 1973.

28. The Respondent in his closing written submissions, at paragraph [31] argued:

    From the Minister’s perspective, the only acceptable process for verification of identity documents is conducted via the Department’s overseas post in Dubai/Afghanistan who liaise with the NSIA directly. The Department has been unable, in the time available, to independently verify the genuineness of the absentee or age-amended taskeras.

29. Given the unsatisfactory evidence as to the Applicant’s age and year of birth, the Tribunal is not reasonably satisfied about his date or year of birth absent the independent verification of the genuineness of the absentee or age amended taskera via the Department’s overseas post.  The Tribunal agrees with the submission of the Respondent in that regard.

    Other identity documents

30. The Applicant provided various documents relating to the identity of his family members. Their taskeras[26] show same dates of birth as their respective passports.[27] However, as part of the bundle of documents provided with the post-hearing submissions, the Applicant provided photocopies of Afghan Citizen Cards which, in respect of his children’s dates of birth, differ by approximately one year and in respect of his wife, a two-year difference in her date of birth.

    [26] ST46/697-702.

    [27] ST48/721-728.

31. Once again, the difference in dates of birth of family members may be similarly explained by the absence of accurate records and estimations of birth dates. The circumstances in which the Afghan Citizen Cards were brought into existence are not clearly before the Tribunal. Given the different years of birth, I infer that neither the taskeras nor the passports would have been relied on to create the Afghan Citizen Cards. Hence, there is little weight that can be attached to the Afghan Citizen Cards in terms of proof of any fact, one might otherwise infer, from their content.

32. Nonetheless, the Applicant has consistently produced evidence which identified his wife and five children as his family members, and I am reasonably satisfied that together they represent the Applicant’s family. Further, he has given generally consistent evidence, including in his statutory declaration dated 19 November 2005,[28] his statement dated 5 September 2008[29] together with his oral evidence before the Tribunal about his personal circumstances when living in Afghanistan, his flight to Iran and then Pakistan and the circumstances of his journey to Australia.

    [28] ST21/329-333.

    [29] ST23/389-391.

33. Despite those inconsistencies to which I have referred, I am reasonably satisfied about the Applicant’s name and family members. However, despite the consistent evidence about his life story, until the taskera previously the subject of fraudulent alteration has been authenticated, I am not reasonably satisfied of the Applicant’s Afghan citizenship. His willingness to deceive the Department over an extended period of time raises significant concern about the credibility and reliability of the Applicant as a witness of truth.

    Character

34. The Applicant has provided a number of character references to which I have referred that attest to his general good character and that he is well regarded within his community. His brother, Mr R in his statutory declaration dated 22 February 2018, stated, ‘My brother is a good, honest, trusting and kind-hearted man. He would never intentionally deceive other people.’[30] However, none of those who have provided character references were aware of the Applicant’s deceptions, particularly in respect of M1 and M2 when they wrote their reference letters.

    [30] ST53/800.

35. The Applicant provided a statutory declaration dated 22 February 2018[31] which declared that he has never been charged or convicted of any criminal offence and never conducted himself in a way which may have constituted an offence against the laws of Australia. I accept the contents of that statutory declaration. However, the absence of criminal offending is not in and of itself demonstrative of a person’s good character.

    [31] ST53/801-802.

36. In BOY19, at [11], the Court had to consider, amongst other things, a lie that ‘was perpetuated for many years and repeated in statutory declarations sworn by the applicant’, namely that he was born in Afghanistan rather than his true place of birth, Pakistan. At first instance, the Member noted mitigating circumstances relating to the statement about his place of birth, namely, that he held a genuine fear for his life should he be returned to his place of birth, Pakistan. The Member gave significant weight to the fact that the Applicant perpetuated that dishonesty including statements. The Minister acknowledged that he faced a risk of serious harm if returned to Pakistan. However, in discussing various statements made by the appellant including the place of birth, Boyle J said at [37]:

    [G]iven that the Member appeared to accept the applicant’s explanation of the statements, it is not clear why the Member gave any weight to the statements as bearing on the question of good character.

    Hence, having a genuine fear for his life upon being returned to Pakistan, it was understandable that he lied when he said he was born in Afghanistan and accordingly his deception did not mean that he was not a person of good character.

37. In his arrival interview, the Applicant deceived the Department by telling them that M1 and M2 were his two oldest children. He did this with the intention of enabling them to join in his family in Australia. This deception might be understood when viewed against the desire to help both boys have a better life. That deception, in and of itself, may not reflect adversely on the Applicant’s character. As I have said, the Applicant’s personal circumstances engenders some sympathy. However, that was not his only deception. He deliberately changed the date of marriage to give legitimacy to M1 and M2 being his children. He lied by saying he did not know anyone in Australia, that he had never communicated with anyone in Australia, had never applied for a visa to Australia,  that no member of his family ever applied for a visa to enter Australia, and that he did not know anyone had applied for a visa to Australia.

38. The Applicant said he did not disclose that he had a brother in Australia based on advice received from people smugglers. As I have said, I do not accept that explanation. The information provided to authorities was a considered well thought out deceit to bring about the desired outcome, including to avoid detection that he was an Applicant in three failed applications made offshore. The Applicant maintained that deception in a statutory declaration dated 8 May 2010 in which he said he had four sons and three daughters and continue to deceive the Department.

39. In the Invitation to comment dated 14 November 2017, the Department put the Applicant on notice about a number of issues, including:

    ·his three previously undeclared offshore visa applications in 2005 and 2009.

    ·that he had provided false and misleading information including a different name and identity.

    ·referred to the deceptions in his arrival interview on Christmas Island on 7 March 2010.

    ·in his protection visa application, granted on 16 February 2011, he referred to M1 and M2 as his two eldest children.

    ·that on 9 June 2011, he lodged a Global Special Humanitarian Visa application as a sponsor (withdrawn on 8 May 2013) naming nine dependents, including M1 and M2.

    ·on 30 July 2013 he lodged a Partner (Provisional) (Offshore) (UF309) spouse visa sponsoring his wife and four children, excluding M1 and M2.

40. Further, it was noted that the Applicant had relied on a translation of a taskera when lodging his Global Special Humanitarian Visa application with a translated birth date of 1978, yet when lodging his application for Australian citizenship by conferral on 17 February 2015, he provided the same numbered taskera with no translation. The Tribunal notes that the Applicant later provided that taskera with the birth date changed to 1973, which was fraudulently altered.

1. The Applicant’s response to that Invitation to comment, was his statutory declaration dated 19 February 2018. That statutory declaration in part relevantly reads:[32]

   [32] T17/241-242.

   4.As a legally blind man, I am very vulnerable and I have spent my whole life relying and acting on the guidance of others. When I came to Australia I was very vulnerable to the influence of other people, especially the smugglers who helped me flee persecution in Afghanistan. I was given all kinds of advice about what to say and what not to say to Australian authorities. I placed a great amount of trust on the smugglers and heavily relied upon the advice they gave me.

   5.The smugglers advised me not to mention my brother [Mr R] to Australian authorities because I did, my visa application would be refused and I would be sent back to Afghanistan. They also warned me not to mention that I have any family or friends in Australia, as it would be easier not to mention this information.

   6.I believed based on the mistaken advice I was given, that it would be better for me to leave out this information. I feared being send back to Afghanistan where my life would  be in grave danger, so I foolishly listened to them.

   7.In my entry interview and in my XA866 application, I did not tell the whole truth about my family composition by not mentioning my brother [Mr R] as I felt lock[ed] in to the initial incorrect information I had given.

   8.I am deeply embarrassed and disappointed by my dishonesty. I knew that I should have admitted to the false information afterwards but I was too shocked and afraid to act on my conscience due to the warning given to me by the smugglers.

   9.I admit to disclosing false information to the Department about my family composition. Due to the extreme stress and fear I faced at the time and due to my family’s desperate situation, I did not appreciate the gravity of my deception.

   10.Whilst I accept responsibility for my wrong actions, I do not believe that my behaviour during the interview or in misleading the Department is a true and accurate reflection of my character or moral values.

   11.My dishonesty with the Department has left me feeling overwhelmed with remorse and guilt, but I have not known how to make things right. I recognised that responding to the Invitation to Comment was my opportunity to fully disclose my past mistakes to the Department and right my wrongs.

   12.I was misguided by the smugglers and feel extremely remorseful and embarrassed about my failure to be completely honest with the Department sooner. I understand that my family’s desperation for safety and my reliance upon others due to my disability does not excuse my behaviour, but I hope it offers some explanation to my actions.

   13.I hope that my mistake in listening to misguided advice does not cost me and my family safety and the opportunity for a better future.

2. The Applicant then explained the reason for the different spelling of his name which, in part, referenced that he was blind and unable to fill out his visa application and relied on someone else to fill in the form and that he was unable to adequately review every detail and spelling.

3. Having declare that his dishonesty with the Department left him feeling overwhelmed with remorse and guilt and recognising the response was his opportunity to fully disclose his past mistakes to the Department and right his wrongs; the Applicant in his statutory declaration proceeded explained M1 and M2 as follows:[33]

   15.As to why my wife and I have not include [M1] and [M2] in our previous visa applications, it was because they are not out biological children. [M1] and [M2] are my sisters children, they are the sons of [GN]. In 2002, [M1] and [M2] was killed by Taliban. They were left with my sister. My sister managed to look after them for many year up until 2009. Sometimes in 2009, she brought [M1] and [M2] to Pakistan and told me she can no longer care for the two boys and that begged me to adopt them as my own and provide for them.

   16.Being their uncle, I could not say no given that I knew how it extremely hard it was for a woman in my sister’s shoes to provide for two children without any male support and protection.

   17.Since then the boys lived with my children and we regarded them as our own up until February 2013 they lived and went to school in Quetta.

   18.In February 2013, a large blast ripped through Quetta near a market at the Kirani road, which is in Hazara Town killed at least 84 people and left more than 200 other injured. Among the dead were [M1] and [M2] I was in Pakistan at the time and was devastated.

   19.There are no formal adoption mechanisms in Afghanistan as adoption is not recognised under Islamic law. So I cannot provide an adoption certificate like you have in Australia to support this. Since they came into our care we consistently included them in our visa applications until they died in 2013. I included them as my children in my entry interview and Protection Visa application in 2010 and my wife and I included them in our Global special Humanitarian Visa application which we withdrew on 8 May 2013.

   [33] T17/242.

4. The Applicant’s expression of an overwhelming feeling of remorse and guilt for his dishonesty, and that he was taking the opportunity to fully disclose his past mistakes, was a further example of his continued deception. It was plainly a lie. He was determined to continue to mislead and deceive the Department in a manner that was inexcusable. In his statutory declaration he merely substituted one lie with another even more fanciful lie about the death of M1 and M2 to benefit himself.

5. His deception was then compounded, with the assistance of his wife, by ordering and obtaining bogus death certificates for M1 and M2 and lodging them with the Department. This deception he maintained until he gave evidence before the Tribunal. And even then, when questioned by the Tribunal about who recommended he tell this lie, his initial responses were evasive and misleading.

6. The Applicant has maintained a practice of deceiving the Department from his arrival in Australia in 2010 until the hearing before the Tribunal. That continued deception, which was made worse by his statutory declaration dated 19 February 2018 and subsequent bogus death certificates, is not the conduct of someone demonstrating enduring moral qualities of a person of good character. To the extent that he has provided character references expressing that he is of good standing in his community, those who gave the testimonials were not aware of is deception and I give little weight to the opinions they express, as it relates to the Applicant’s character.

7. The Applicant’s deception was not brought about by an isolated and understandable desire to bring two disadvantages boys to Australia. If that were the sole purpose of the deception it may be arguable that his character was not brought into disrepute. It was the totality of his deceptions over a lengthy period of time, compounded by the production of bogus death certificates, all directed to promoting his self-interest that undermine his character.

8. The Applicant clearly understood the difference between right and wrong which he acknowledged in his statutory declaration, but that did not deter him from his continued elaborate deception. He was neither ethical nor did he demonstrate the values of Australian society. He was not honest or truthful and practiced both deception and fraud in dealing with the Department.

9. True it is that the Applicant has not offended any laws since being in Australia or associated with those who do so. However, the aggregate of those good qualities does not outweigh the totality of his deceptive behaviours. It is to his credit that the Applicant finally told the truth and admitted his deceptions. But that has only occurred at the last minute when giving evidence before the Tribunal. His deceptive behaviour has continued from 2010 to the date of the hearing. He has not demonstrated those characteristics to which I have referred in Chapter 11 of the Policy namely “enduring moral qualities” encompassing the following concepts:

   ·characteristics which have been demonstrated over a long period of time

   ·distinguishing right from wrong

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

10. He has demonstrated over the period of time he has been in Australia a determined and deliberate deception beyond what might be an understandable attempt to bring M1 and M2 to Australia. He had the opportunity to “come clean” yet he chose a further path of deception which he attempted to corroborate by producing bogus documents.

11. Accordingly, I am not reasonably satisfied that the Applicant is a person of good character within the meaning of the Policy.

    DECISION

12. The decision under review is affirmed.

I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

......................[Sgnd]..............................

Associate

Dated: 3 September 2020

Date of hearing:	20 January 2020 and 4 March 2020
Applicant	In person
Applicant written closing submissions	10 April 2020
Respondent written closing submissions	8 May 2020
Representative for the Applicant:	Robert Yeomans,  Beena Rezaee Legal & Migration
Representative for the Respondent:	Laura Butler, Australian Government Solicitor