Ibrahimi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2024] AATA 3503
•2 October 2024
Ibrahimi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3503 (2 October 2024)
Division:GENERAL DIVISION
File Number:2022/1871
Re:Karim Ibrahimi
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Henderson
Date:2 October 2024
Place:Perth
The decision of a delegate of the Respondent dated 16 December 2021, to refuse the approval of the Applicant’s application for citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) is affirmed.
.............[Sgd]...........................................................
Member Henderson
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied applicant was of good character – Australian Citizenship Act 2007 s 21(2)(h) – Applicant is a citizen of Afghanistan – Adopted child – misleading information – Tribunal cannot satisfactorily ascertain Applicant is of good character – reviewable decision affirmed
LEGISLATION
AUSTRALIAN CITIZENSHIP ACT 2007 (CTH), SS 21, 21(1), 21(2)(H), 24, 24(1A), 52(1)(B), 50, 53
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH), S 37
MIGRATION ACT 1958 (CTH), S 234(1)
Road Traffic Act 1974 (WA), s 59, 60B
Statutory Declarations Act 1959 (Cth), s 11
CASES
Boy19 v Minister for Immigration and Border Protection [2019] FCA 574
Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231
FCR 128Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148
Minister for Home Affairs v G and Another [2019] FCAFC 79
SECONDARY MATERIALS
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act, 15(4)
Australian Citizenship Policy Statement, 27 November 2020
REASONS FOR DECISION
Member Henderson
2 October 2024
INTRODUCTION AND BACKGROUND
The Applicant seeks review of a decision of a delegate of the Respondent (the delegate) dated 16 December 2021, to refuse the Applicant’s application for citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).[1]
[1] R1, T15, pp 104-116.
The Applicant is a 51 year old citizen of Afghanistan.[2] He first arrived in Australia on 4 October 2009 as an unauthorised maritime arrival and was subsequently granted a permanent Protection (subclass 866) Visa on 16 December 2009.[3] On 7 October 2013, his wife and children were granted permanent Partner (subclass 100) visas.[4]
[2] R1, T4, p 28.
[3] R1, T15, pp 107-108.
[4] R1, T15, p 108.
On 15 August 2014, the Applicant applied for Australian Citizenship – General Eligibility.[5] On 16 December 2021, the delegate made a decision to refuse the Applicant’s application for Australian citizenship because the delegate was not satisfied that the Applicant was a person of good character in accordance with s 21(2)(h) of the Act.[6]
[5] R1, T4, pp 11-20.
[6] R1, T15, p 107.
On 6 March 2022, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.[7]
[7] R1, T2.
This matter was listed for a hearing on 28 June 2023. At that time the applicant was self-represented. It was adjourned because the then presiding member was of the view that the Applicant would benefit from legal assistance.
The matter was subsequently reconstituted and listed for a hearing on 15 March 2024. The Applicant was represented by Ms Qijong Briony Chen of Tang Law who appeared in person. The Respondent was represented by Mr Alex Chan of Sparke Helmore Lawyers who appeared by video.
At the commencement of that hearing it became apparent that the Respondent had served the Statement of Facts, Issues and Contentions (RSFIC) and their tender bundle on the Applicant prior to the appointment of his representative. Ms Chan requested a copy of the RSFIC, which was provided. She was unaware that a tender bundle had been sent and did not ask for it, and the Respondent did not send it or draw her attention to its existence. The Tribunal accepts that it is the Applicant’s responsibility to ensure that his representative has all relevant documents that have been sent prior to her appointment, but also considers that, as a model litigant, the Respondent should reasonably have checked at the time of providing the RSFIC whether the Applicant’s representative was aware of other documents that had been filed. The Tribunal agreed to adjourn proceedings to provide the Applicant’s representative with an opportunity to review the material in the trial bundle.
The matter was heard on 25 March 2024 and 4 April 2024 at the Tribunal's Perth Registry.
LEGISLATIVE FRAMEWORK
The application for review of the Reviewable Decision is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Tribunal for review of a decision under s 24 of the Act.
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 21(2)(h) 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 of the Minister’s decision on the application’. Section 24(1A) of the Act prohibits the Minister (or delegate under s 53 of the Act) from approving an application unless so satisfied.
The expression ‘good character’ is not defined in the Act. There are no criteria contained in the Act by which the Minister is to consider what comprises good character, and it has been held that this is an indication that Parliament intended the term to be used in a broad way.[8] The words ‘good character’ are used in their ordinary sense.[9]
[8] Grass v Minister for Immigration and Border Protection[2015] FCAFC 44; (2015) 231 FCR 128 at [60].
[9] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431].
Matters that bear upon a person’s good character for the purposes of the Act are matters relevant to the obligations of citizenship as expressly or impliedly reflected in the Act, including its Preamble, which recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and involves reciprocal rights and obligations.[10] It is, as the oft-quoted decision in Fenn puts eloquently, ‘a privilege not bestowed lightly’.[11]
[10] Boy19 v Minister for Immigration and Border Protection [2019] FCA 574 at [53].
[11] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
Citizenship Policy Statement and Revised Citizenship Procedural Instructions
Guidance is set out in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship Policy Statement, which came into force as of 27 November 2020 (the Policy). Policy is not binding on the Tribunal, but decision makers should generally apply it unless it is unlawful or there are cogent reasons why it should not be applied.[12]
[12]Minister for Home Affairs v G and Another [2019] FCAFC 79 at [57]-[62].
CPI 15(4) provides that an Applicant of good character would, among other things:
· respect and abide by the law in Australia and other countries;
· not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example intentionally providing false personal information or other material; and
· not be the subject of any verifiable information causing character doubts.
BARRIERS TO SATISFACTION OF GOOD CHARACTER
The sole issue before the Tribunal is whether the Applicant is a person of good character for the purpose of s 21(2)(h).
The Respondent advances two reasons why it says that the Tribunal should not be satisfied that the Applicant is a person of good character:
(a)The Applicant provided false information to the Department in relation to his family composition; and
(b)The Applicant did not admit his deception until he was confronted by the Department with evidence about it in 2021.
The Respondent says that the Applicant has consistently provided false or incomplete family composition information to the Department over a period of ten years, including:
(a)Failing to declare one of his children or falsely declaring that an adopted child was his biological child;
(b)Failing to declare that he had a brother who was already in Australia;
(c)Failing to declare that his sister was in Australia; and
(d)Declaring that he had another brother in his earlier visa applications, but not including him in the citizenship application.
The Applicant concedes that he has provided incorrect information, but in summary advances the following propositions by submission and evidence:
(a)At some times he has been motivated by good intentions;
(b)At some times he has been genuinely unsure of the scope of what was being asked of him; and
(c)At some times he has been afraid because he has realised that he made mistakes and has been genuinely unsure about how to rectify the situation.
The Applicant says that if the Tribunal looks at him holistically then can be satisfied of his good character, notwithstanding the errors in the information that has been provided about his family. His case as it appears in the evidence is that he has no criminal record, contributes positively and generously to the community, pays his taxes and meets his obligations, and has a reputation for honesty, aside from in his migration dealings with the Commonwealth.
EVIDENCE
Documents in evidence
The Applicant lodged the following evidence with the Tribunal, which was tendered at hearing:
(a)Statutory Declaration prepared on behalf of the Applicant and bearing his signature, dated 26 July 2023 (A2) [13]; and
(b)Applicant’s Statutory Declaration dated 9 August 2022 (A8).
[13] The exhibit numbers reflect the manner in which the documents were filed and marked in the bundles of documents before the Tribunal, for ease of reference during the hearing.
The Respondent provided documents pursuant to s 37 of the Administrative Appeals Act 1975 (Cth) (R1).
The Respondent also provided two tender bundles (respectively R2 and R3).
The Respondent lodged an Electronic Copy of Department File re Partner Visa in question, made up of screenshots and file notes, which was marked for identification (MFI1).
The Respondent otherwise relied upon its Statement of Facts, Issues and Contentions dated 5 September 2022 (RSFIC).
Admissions and documents
It is not in dispute between the parties that the Applicant’s family composition as described by the Applicant has been different in the various official documents that he has completed and in his evidence in writing and in interviews since his arrival in Australia.
The Applicant was first asked about his family composition in his Unauthorised Arrival Interview, which took place on 20 October 2009.[14] In answer to questions about his family composition he gave details of six children, ranging in age from 2 to 13 years old. The oldest child that he gave details for was a boy (‘M’). He also gave details of eight siblings, including Murtaza and Masoomah. He repeated this information in an attachment to a Form 80, dated 17 November 2009.[15]
[14] R2, TB2, pp 11-12.
[15] R2, TB6, p 61.
On 26 March 2010 the Applicant’s wife made an offshore humanitarian visa application, in which M was described as the Applicant’s wife’s biological son.[16] Shortly afterwards the Applicant filled out a global special humanitarian visa application for his wife dated 21 April 2010.[17] He was asked about it during the hearing and he said that it was prepared by a lawyer, or lawyers, to whom the Applicant provided necessary information.[18] Both forms state that the author has had the assistance of Ms Grace Gardner, of the Legal Services Commission of South Australia.[19]
[16] R2, TB10, p 80.
[17] R2, TB12.
[18] Transcript, p 23.
[19] R2, TB10, p 102; TB12, p 111.
M was also disclosed in the Applicant’s wife’s partner visa application. It was in the course of this application that DNA testing confirmed that M was not a biological member of the family.[20]
[20] R2, TB13.
In the Applicant’s Form 80 (Personal particulars for assessment including character assessment) which was received by the Department on 20 April 2016, the Applicant was asked about his children (including biological or adopted children) and he provided details of five children.[21] He did not include details for M. He was also asked about his siblings, and he provided details for two siblings only; neither of them the siblings of interest to the Department. [22]
[21] R1, T6, p 42.
[22] R1, T6, p 46.
On 15 August 2014 the Applicant filed an application for Australian citizenship.[23] The Application form requested details of the Applicant’s children, and he provided details of
five children, not including M.[24]
[23] R1, T4, pp 11-20.
[24] R1, T4, p 13.
Telephone call on 25 July 2019
On 25 July 2019 the Department contacted the Applicant by telephone to interview him.[25] The Applicant was specifically asked about his children, and he named five children. He did not refer to M. He was also asked about his siblings, and he named seven of them. He did not name Alibaba. He was asked where his siblings were and he said that his brother Murtaza was in Afghanistan and his living sisters were all in Afghanistan. He said that his other two brothers were in Australia.
[25] R2, TB14, p 114.
The Applicant was asked specifically about discrepancies between his protection visa application and his citizenship form. With respect to his brother, Alibaba, who had been named in the former but not the latter the Applicant said that Alibaba is a step-brother and he ‘did not know whether to declare this information or not’.[26]
[26] R2, TB14, p 114.
With respect to M, the Applicant said that he adopted M whilst working as a dentist in Afghanistan. He was asked about M’s parents and he said that M’s mother had passed away.
The Applicant denied having any other family members in Australia.[27]
Applicant’s explanation for giving incorrect information – M
[27] R2, TB14, p 115.
Applicant’s statutory declaration dated 9 August 2022
The Tribunal has the benefit of a statutory declaration sworn by the Applicant on 9 August 2022. It included the following evidence:[28]
On 29 November 2012, I lodged a subclass 309 visa application for my wife and children in which I had included and nominated [M] [full name and DOB redacted] as my biological child. Considering the cultural and traditional norms and also taking emotional attachment that I have had for [M], I have always considered him as my natural child and therefore nominated him as a biological child. I also took into consideration that [M] do not [sic] feel emotionally excluded from my family.
The fact is that I had adopted [M] from a young age and raised him as my own child and did not let him feel excluded from my family in any ways. Given the circumstances and regulations at the time in Afghanistan, it was not a requirement to obtain an official document for adoption. Adoption was more of an informal and benevolent arrangement between families. I therefore, do not have any documents/paperwork to certify this adoption.
[28] A8, p 1.
With regards to why M was not included in the Applicant’s later documentation, the Applicant said:[29]
When I lodged a subclass 309 visa application for my wife and children on 29 November 2012, I did not doubt that [M] would be somehow excluded from my application and nor I had a good understanding of the Australian immigration acts, under which [M] would be excluded from this application, unless I provide certain documents to prove the adoption. But when I learned about the procedure and formal requirement/s, I felt that I was unable to fulfill the requirements and I therefore declared the facts and excluded him from my application.
Statutory Declaration prepared on behalf of the Applicant and bearing his signature, dated 26 July 2023
[29] A8, p 1.
In his statutory declaration sword on 26 July 2023 the Applicant gave the following evidence about the information he had previously given to the Department:[30]
9. In 2010, I was residing in a share house in Adelaide, SA, and had a housemate who also spoke Hazaragi help me with preparing my wife and children’s Global Special Humanitarian Visa application. I gave him all the relevant information. I did not review or check the form, and assumed he completed it based on the information I gave him.
10. One of the errors on this form was that this young boy I knew from Afghanistan, [M], was my biological child. I told my housemate that [M] and I had a close relationship and he misunderstood and put him as my biological child.
11. In 2012, I was residing in Perth, WA. I engaged a registered migration agent for my wife’s Partner visa application. I provided the agent with my wife and children’s previous Humanitarian visa application. The agent used this information to prepare and lodge the Partner visa application. I again did not check the forms.
12. [M] was not included in my wife’s Partner Visa application.
13. The department called me on the phone in 2013 to discuss why [M] was not included. I cannot recall specific information I provided. Based on the Department’s official records, I had told the delegate [M] was adopted and I was supporting him as he lives in Afghanistan.
[30] A2, p 1.
The Applicant subsequently corrected paragraph [10] during his oral evidence and said:[31]
First of all, the person that has helped me, he was not a housemate, because I was in a shared accommodation. And secondly, I explained to her that [M] is not my son, but she has told me that, 'You cannot bring him here if he is not your son. You should write that he is your biological son'.
[31] Transcript, p 46.
The Applicant said that [M] was the son of a ‘very close friend’ of the Applicant in Afghanistan and had grown up together with his children in the same village.[32] He said that he supported [M] financially and otherwise for many years. Importantly, he made the following unequivocal concessions:[33]
21. I confirm [M] is not my biological child or relative. Despite my previous assertions, I concede that I am not the adoptive father of [M], legally or culturally.
22. Upon travelling to Australia I made a wrong decision. During the travel to Australia by boat, I spoke with the other men aboard about many things. We discussed [M]. I thought about him and his future and made the decision then to put him as my child on my application.
23. I told the Department that he was not my biological child, but my child nonetheless.
24. I believed I was doing a good deed at the time. I did not think of the consequences.
25. After I came out of Christmas Island, I realised what I had done was actually a big mistake. The more time I spent as part of the Australian community and understood the values, its people, and the opportunity I was given here, the more I regretted it. However, I was too scared to tell the truth. I did not know what would happen to me and my family back in Afghanistan. Time got away from me, and the problem became too big.
26. In 2013, I accept that I told the Department on a phone call that [M]’s parents died when he was one month old and I raised him since as my child. To the best of my knowledge, [M]’s parents are still alive and residing in Afghanistan.
27. Further, when [M] applied for his taskera, he did this at the same time as my wife and children at the Afghan Embassy in Quetta, Pakistan. As we now know, those taskeras were not genuine and the Embassy gave us fraudulent documents without our knowledge. What also happened was that the Embassy mixed up all the children’s information and I was put as [M]’s biological father. I submitted this to the Department without checking and this just made the issue bigger.
[32] A2, p 2.
[33] A2, p 2.
Evidence at hearing
In his evidence in chief, the Applicant confirmed that he has five biological children and that M is not one of them.[34]
[34] Transcript, p 16.
The Applicant gave the following explanation for M’s entry into his life:[35]
I was a dentist in Afghanistan, and my life was good – I mean, financially my life was good. Another person actually has introduced him to me – him and his family to me, and has asked me to help them financially – to support him financially.
[35] Transcript, p 17.
He was asked if he had adopted M and he said:[36]
Kind of, I did adopt him. I had a chat with his parents, and I have asked him to come and live with us, and also with his parents. And I told him that he can – he can live with us if he is willing to. And when he doesn't want to live with us, he can go back to his father.
[36] Transcript, p 18.
The Applicant said that M had travelled to Pakistan with his family in 2010 and was with them there until 2013. He said that in 2013:[37]
…they did a DNA check, and they found out that he was…not my son, and therefore they haven’t issued a visa for him. They told us he's not my son, and I – and I also told them that, 'Yes, you're right, he's not my son'. And therefore he went back to his family [in Afghanistan].
[37] Transcript, p 19.
He was asked about the 2019 interview, and his assertion that M’s mother had died, and he apologised for ‘providing the wrong information regarding my son’s mother. In the beginning, I have declared that my son’s mother is dead. Then, later on, I declared that my son’s mother is alive’.[38]
[38] Transcript, p 25
The Applicant was clear in the course of cross-examination that M’s mother is alive.[39]
[39] Transcript, p 52.
Importantly, the Applicant and the Respondent’s solicitor, Mr Chan, had the following exchange:[40]
[40] Transcript, p 65.
MR CHAN: Can I ask you then about paragraph 25 in that statutory declaration? You say in that paragraph:
After I came out of Christmas Island, I realised what I had done was actually a big mistake. The more time I spent as part of the Australian community, and understand the values, its people, and the opportunity I was given here, the more I regretted it. However, I was too scared to tell the truth. I did not know what would happen to me and my family back in Afghanistan.
Just pausing there, what is the ‘big mistake’ that you are referring to?
INTERPRETER: Well, I have made a mistake from the country that I have come, and in the legal system compared to the Australian legal system is not the same. In Australia, the culture in Australia is different compared to the culture of our country. Here, you, or people, they have to tell the truth. Whatever they do, they have to tell the truth.
MR CHAN: So do I understand your evidence correctly, your big mistake was telling a lie?
INTERPRETER: Well, yes since beginning until now, I thought, you know, everything is like my country, and I lied, and I apologise from the people of Australia (indistinct).
MR CHAN: And just so I understand, is the lie that [M] is your son when he is not your son?
INTERPRETER: Yes, he was not my son, yes.
At times in the course of the Applicant’s cross-examination he pressed that M was his adopted son. [41] He described a process of adoption in Afghanistan when someone is poor and can’t care for their children and a child is given to a wealthy family. He conceded that this process does not involve paperwork and might not be recognised by the Afghan government.[42] It is not inconceivable that the Applicant’s initial claim that M was his child was a genuine error.
[41] Transcript, p 68.
[42] Transcript, p 68.
It is clear from the Applicant’s evidence, however, that he has told intentional lies. He admitted that he had submitted a Tazkira for M in the course of his wife’s partner visa application which he knew was fraudulent because it stated that he was M’s biological father.[43] He told the Department that M was an orphan when he knew that his parents were still alive. He acknowledged that this was a lie, and said ‘I lied to the officer because I love my son a lot, and I wanted him to be here with my family in Australia’.[44]
Applicant’s explanation for giving incorrect information – Applicant’s siblings
[43] Transcript, p 72.
[44] Transcript, p 74.
Applicant’s statutory declaration dated 9 August 2022
The Applicant asserted in his statutory declaration that Masooma was still in Afghanistan when he first submitted his personal particulars for assessment, and that he therefore correctly stated that she was there as her country of residence. She migrated to Australia in 2019 and the Applicant says that he declared her country of residence in 2020 as Australia.[45]
[45] A8, p 1.
The Applicant says that Murtaza arrived in Australia in 2011 and did not declare his siblings or family composition. The Applicant says that Murtaza did not declare their relationship because the people smugglers told him that it might have a negative impact on his protection claim and he was frightened. The Applicant is not clear on why he did not declare Murtaza, but there is a clear inference that the Applicant did not want to do something inconsistent with what his brother had done.[46]
[46] A8, p 1.
Applicant’s statutory declaration sworn 26 July 2023
The Applicant expanded on his position with respect to his siblings in his statutory declaration sworn in July 2023. He said:[47]
30. I have tried to always declare each and every sister and brother I have. I have eight (8) siblings in total, one is a stepbrother who I did not declare in my citizenship application as we have no biological or familial connection. I do not consider him a member of my family and we do not communicate.
31. Regarding my brother, Murtaza Rahimi, I concede this was a mistake to not include him. Murtaza had told me that I was “not his brother” in Australia, and asked me not to include him in my future applications. I went along with his request.
32. I never pressed on why he asked this. I am aware now that my siblings, Murtaza and Masooma Rahimi, created their own life stories for their visas, only declaring each other as siblings. I cannot speak as to why they did this, I believe they were influenced by others in the detention centre who told them their applications would be processed faster or have a better outcome if less family members were included.
33. Now, they are unwilling to help me explain what happened even for me and my children’s citizenship. I have ceased contact with them and told them that the Department will be asking them the same questions like me.
34. I cannot recall why not every sibling was included in my citizenship form, as I put everyone in my Protection visa. I do acknowledge that there have been inconsistencies regarding what countries some siblings were living in at particular times.
35. At the time of completing these forms, such as the Form 80, a few siblings were still residing in the declared countries e.g. Afghanistan but later came to Australia once the application had been lodged. By the time it was brought into question by the Department, the circumstances changed.
36. I accept that I had a phone call with a delegate in 2019 where I incorrectly told them that my siblings, Murtaza and Masooma, were in Afghanistan when they were in Australia. I am not sure why I said this.
37. The delegate asked many questions during the call and I might have got confused, especially as I did not have an interpreter and my English is limited. I may have mixed up what I had declared on my application form rather than the current information.
[47] A2, pp 2-3.
Evidence at hearing
In his evidence in chief, the Applicant’s evidence was that he has four brothers, including a step-brother, and four sisters.[48] He was asked why he did not disclose all of his siblings in his protection visa application and he said that he did not mention Murtaza or Masuma because they had ‘totally separate application’.[49]
[48] Transcript, p 17.
[49] Transcript, p 26.
During cross-examination the Applicant offered the following explanation for stating that his siblings were in Afghanistan:[50]
MR CHAN: Your response about Mortaza being in Afghanistan, and your sisters being in Afghanistan is not correct, is it?
INTERPRETER: When I came to Christmas Island, I reported Mortaza as my brother, but when Mortaza has come to the Christmas Island with the people smugglers, they have advised me not – they have advised him not to write (indistinct words), and if I – if I – the fact that Mortaza is my brother will increase my points.
MR CHAN: Just to backtrack to the question though. When you said to the officer that your brother Mortaza was in Afghanistan, that’s a lie, isn’t it?‑‑‑Yes.
But you lied to the departmental officer because, in essence, Mortaza lied first, and so you had to continue the lie; is that right?
INTERPRETER: Well, Mortaza has told me not – has actually advised me not to write his name in my case, because his case is totally different, and separate from my case. And that was the reason why I haven’t reported him as my brother, and I haven’t reported him being here in Australia. Otherwise, my brother (indistinct) the day that he has come to Christmas Island, I reported him as my brother.
[50] Transcript, p 75.
Evidence of good character
The Applicant says that he believes he is of good character. He says that he is a committed husband and father, and further:[51]
44. I am a good worker. I have consistently been employed as a tradesman in Australia for the last decade, including working through the COVID-19 pandemic. I am tiler for P.B Property Maintenance. One of my current job sites includes the HMAS Stirling naval base in WA.
45. I am also an active participant in my local cultural and religious organisations. I am a member of the Hazara Hussaini Centre and Towhid Association Inc. I help out these organisations in any way I can, including supporting community events or through donations.
46. I am considered a leader in my local community. Many Humanitarian visa holders live in my area and whenever a new family moves in, I reach out to them. I try and help them in the way that I hoped others did for me and my family when we came to Australia. This includes referring them to local services such as Centrelink, informing them of the nearby public transport stops, assisting with school enrolment for their children, or giving out cash as financial support.
47. I have helped roughly 29 families.
48. I do not have any criminal history.
[51] A2, pp 3-4.
The Tribunal accepts that these are all attributes of a person of good character. However, the Applicant’s credibility has been seriously damaged by his repeated failure to be forthright in his evidence to the authorities and the Tribunal is not prepared to accept his assertions except where they are corroborated by some other evidence.
Witnesses
Paul Brown
Mr Paul Brown is the Applicant’s employer at P.B. Property Maintenance. He wrote an undated letter of support for the Applicant, in which he says he has known the Applicant for ten years and the Applicant has ‘consistently proven himself to be a loyal and dedicated person both in his personal and professional life.’ He describes the Applicant as ‘an excellent tradesman’ and ‘a respected member of the PB Property Maintenance Team’.
Mr Brown spoke to his statement orally at the hearing and was a compelling and forthright witness. He described the Applicant as ‘a great bloke’ who was ‘bringing up a great family’.[52] He was not cross-examined.
[52] Transcript, p 113.
The Tribunal accepts that the Applicant is a loyal and dedicated person with a professional attitude to his work and a strong, positive reputation in the community.
Mahammad Arif Nazari
Mr Nazari wrote a letter of support dated 25 July 2023, which says that he has known the Applicant for seven years and recommends him with pleasure. He says that the Applicant has consistently proven himself to be ‘a great person’. He describes the Applicant as an active participant in cultural community and religious activities, and that he supports community events ‘both physically and financially’. He goes on to say that the Applicant ‘helps new arrival families and guides them find [sic] Centrelink, local buses, shops, and parks’ and further that he ‘organizes gathering time for family if they need help financially’.
Mr Nazari gave evidence at the hearing to substantially the same effect. He presented as an honest and forthright historian. He was not cross-examined.
The Tribunal accepts that the Applicant provides considerable support and assistance to families arriving in Australia and to the migrant community.
Karim Ayubi
Mr Karim Ayubi provided a letter dated 26 July 2023. He identifies himself as a disability support worker. Mr Ayubi says that he is one of the community members of the Applicant and that he calls the Applicant ‘our community leader’ and has done so for a long time. He describes the Applicant as ‘a well respected, reliable and honest person whom everyone in the community trusts and respects’. He goes on to say:
Throughout the years he has proven himself to be a good role model, leader with great character. I have witnessed him to be a caring and helpful leader who consistently go above and beyond to help everyone around him.
Mr Ayubi gave evidence to the Tribunal. He was a passionate advocate for the Applicant, whom he said he had known in Afghanistan. He described the Applicant as having five children – four sons and one daughter. He was asked about non-biological children and he repeated that he knew the Applicant to have five children. He was asked about M by name and said he didn’t know about him. However, he confirmed that he had left Afghanistan before the date on which M is thought to have been born and M did not travel to Australia.[53]
[53] Transcript, pp 118-119.
Mr Ayubi was not cross-examined.
The Tribunal accepts that the Applicant is recognised as a community leader and is held in respect by his community.
Zia Ibrahimi.
Mr Zia Ibrahimi is the Applicant’s now adult son. He did not provide a witness statement in advance of the hearing, and the Respondent’s hearing list did not provide notice that Mr Zia Ibrahimi would be given evidence. The Respondent’s representative objected to Mr Ibrahimi giving evidence. The Tribunal allowed it, however, on the basis that there had been questions asked of the Applicant in cross-examination about how the Applicant’s children related to M.
Mr Ibrahimi said that he grew up together with M, and that the Applicant had treated M ‘just like the rest of us’.[54] He said that M was like a brother to him, and that if he was asked about his siblings he would include M as a brother.[55]
[54] Transcript, p 124.
[55] Transcript, p 126.
Mr Ibrahimi also gave evidence that he had assisted the Applicant with the telephone call on 25 July 2019 and that he had doubts about his father understanding everything that had been said.[56]
[56] Transcript, pp 124-125.
The Tribunal accepts that Mr Ibrahimi considers M to be his brother, and that M grew up in the Applicant’s household with his children. The Tribunal also accepts that some part of the Applicant’s misinformation to the Respondent may have been the result of genuine misunderstandings.
Mohammad Baqir Hussaini
Mohammad Baqir Hussaini wrote a letter dated 6 August 2023. He is the only witness to provide detailed evidence about the Applicant’s family and state that he is ‘fully aware’ of the case before the Tribunal.
Mr Hussaini says of the Applicant that he is helpful to newcomers to Australia, assisting them to integrate into the community and ‘get where they’re going’. He says that he is a great listener who offers wise advice, and that he is ‘a role model for many and inspires others to be kind and generous’.
Mr Hussaini was not available to give evidence. However, the Respondent indicated that there would not be cross-examination in the event that his evidence did not go beyond what was contained in his statement. The Tribunal accepted Mr Hussaini’s statement on that basis.
The Tribunal accepts that the Applicant inspires others to kindness and generosity, and that he is generous with his time and knowledge for newcomers into Australia.
CONSIDERATION
The Tribunal is satisfied that the Applicant has a good heart, is kind, generous and is a significant community leader. He is universally described by his witnesses as a really good bloke. The Tribunal also accepts that the Applicant may have made some mistakes of fact and may have been unclear as to what he was being asked because of interpretation difficulties on occasion and that he did not necessarily intend to mislead the authorities on every occasion that he did not provide complete and correct information.
However, the Tribunal is nevertheless satisfied that the Applicant has intentionally misled decision makers on several occasions. He admits doing so. He accepts that he lied about the death of M’s parents. He accepts that the process of obtaining the Tazkira had involved providing misleading information about M’s parentage, and that he knew that the Tazkira misrepresented him as a parent when he provided it to the Department. He accepts that he had conversations with various people of how to best bring M over to Australia, and that he received advice on multiple occasions that the way to bring him over to Australia was to declare him as a child and not go into detail of the relationship.
The Applicant also accepted that he had withheld information and provided incorrect information about Murtaza and Masuma. He was asked by his brother not to provide their details to Department because they had manufactured a life story inconsistent with the Applicant’s. He was obedient to the request, even though it meant lying to the Department. He signed multiple declarations asserting that he was telling the truth, when he was not.
The Tribunal does not doubt that the Applicant was motivated by kind and generous intentions. He wanted to protect his brother and sister. He wanted to secure a good life in Australia for a boy that he thought of as a part of his family. The Tribunal accepts that, from the Applicant’s perspective, telling lies was a better path to obtaining these objectives than telling the truth. A person of good character, however, tells the truth to the authorities notwithstanding that it does not further their objectives. Lies and deception to obtain a good migration outcome are not indicative of good character, irrespective of the overarching motivation.
The Tribunal has previously found that truthfulness in the completion of government documents, such as applications for visa and citizenship, is ‘an absolute requirement’ and it is the responsibility of a citizenship applicant to ensure that information submitted by them or on their behalf is truthful.[57] A failure to fulfil this responsibility weighs heavily against satisfaction that an applicant for citizenship is a person of good character.
[57] Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686 at [97].
The Tribunal agrees with the oft quoted observations made in Lachmaiya and Department of Immigration and Ethnic Affairs:[58]
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 when dealing with the many reasons for coming to Australia. To lie consistently, as [the applicant] has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that [the applicant] is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.
[58] [1994] AATA 27; (1994) 19 AAR 148 at [35]
The length of the Applicant’s deception, and the manner of its end, also speak against him being a person of good character. The Respondent submits that given the Applicant’s lack of candour over such a long time, his admission of his deception in late 2021 does not demonstrate any true remorse but rather that he had no other option left but to admit that he had lied. The Tribunal accepts that submission and agrees that the only reasonable inference is that, had the delegate not confronted the Applicant about the conflicting information, the Applicant would have pretended that the information he had provided was accurate.
The Applicant expressed remorse for providing incorrect information on many occasions throughout the hearing. It was not clear, however, that he understands the need for honesty for its own sake. He indicated on a number of occasions that the misinformation ‘created lots of problems’, and much of his regret seems to be directed not at his own inherent moral failing but at the consequences of it.[59]
[59] Transcript 25 March 2024 p27
CONCLUSION
For the reasons outlined above, the Tribunal cannot presently be affirmatively satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.
This does not mean that the Applicant is in any way precluded from making a fresh application for citizenship in the future. It does not deprive the Applicant of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he may be able to demonstrate a period of demonstrated regard for the need to be honest in all his dealings with the Commonwealth.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated
16 December 2021 to refuse the Applicant’s application for citizenship by conferral, is affirmed.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for the decision herein of Member Henderson
............[Sgd]............................................................
Associate:
Dated: 2 October 2024
Date(s) of hearing: 15 March, 25 March and 4 April 2024 Advocate for the Applicant: Ms Qijong Briony Chen, Tang Law Solicitors for the Respondent: Mr Alex Chan, Sparke Helmore Lawyers
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