Jahedikargar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 3964

Jahedikargar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3964 (26 October 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2173
Re:Sonia Jahedikargar
APPLICANT

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

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:26 October 2021
Place:Brisbane

I affirm the decision of the delegate dated 26 March 2020.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – whether the Tribunal is satisfied the applicant is of good character – where the applicant failed to disclose prior conviction – where the applicant gave false or misleading information – where the applicant gave inconsistent accounts of fear of persecution in her applications for visitor visa, protection visa and citizenship – Tribunal not satisfied the applicant is of good character – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 20, 21(2)(h), 24(1A)
CASES
Davies and Minister for Immigration and Multicultural Affairs [2000] AATA 509
Ghumaan and Minister for Home Affairs [2019] AATA 200
Lachmaiya and Department of Immigration and Ethnic Affairs, Re (1994) 19 AAR 148
Naidu and Department of Immigration and Ethnic Affairs [1994] AATA 287
Nguyen and Minister for Home Affairs [2019] AATA 998
Prasad and Minister of Immigration and Ethnic Affairs [1994] AATA 326
Warren v Repatriation Commission (2008) 167 FCR 511
SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy, Chapter 11.
Department of Immigration and Border Protection, Citizenship Procedural Instruction No. 15, 27 November 2020.
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
26 October 2021
INTRODUCTION

On 26 March 2020 a delegate of the respondent made a decision to refuse the applicant becoming an Australian citizen on the basis that the delegate was not satisfied that the applicant was a person of good character under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”). The applicant has sought a review of the decision.
BACKGROUND
The applicant is a citizen of Iran. The applicant first entered Australia with her family on tourist visitor visas on 29 March 2014, and she and her family departed from Australia on 8 April 2014. The visitor visas were granted for the purpose of visiting tourist attractions, mainly in Sydney including a dinosaur exhibition and famous buildings. The applicant and her family visited Australia again in July 2014, October 2014 and December 2014.[1]
[1] Exhibit A, T-documents, T23, pp 377-378.
On 30 December 2014, the applicant applied for a protection visa on the grounds that she had been persecuted and discriminated against because of her Baha’i religion. In her application for a protection visa, she claimed: “I was threatened by government to death.”[2] In her application form, the applicant disclosed that she had been convicted of a crime, stating: “I was arrested because I am Baha’i.” Her conviction had not previously been disclosed in her application for a tourist visitor visa in 2013.
[2] Exhibit A, T-documents, T5, p 60.
In her application for a protection visa, she claimed that she might be arrested and imprisoned if she returned to Iran. The applicant included her husband, daughter and son on her application for a protection visa. Before protection visas were granted to the applicant and her children, the husband of the applicant had already departed from Australia. The applicant, in her statutory declaration dated 16 March 2020, stated that on 28 October 2015 her husband sent a request to withdraw his application for a protection visa.[3]
[3] Exhibit A, T-documents, T20, p 348.
In 2015 and 2016 the applicant departed from Australia for a two-week period on each occasion to visit family in Malaysia.
On 6 April 2016, the applicant’s husband made an application for a partner visa with the applicant as the sponsor. In his application for a partner visa, the husband of the applicant stated that he departed from Australia on 20 October 2015.[4] It would appear that he then returned to Iran where he lived until May 2016.[5]
[4] Exhibit A, T-documents, T6, p 176.
[5] Exhibit A, T-documents, T21, p 357.
On 28 December 2018 the applicant made her application for citizenship. In her application form, the applicant declared that she had not been convicted of any offences overseas, contrary to her declaration in her protection visa application.
On 9 October 2019, the Department of Home Affairs (“the Department”) requested further information from the applicant.[6] On 25 October 2019, the applicant responded to this request.
[6] Exhibit A, T-documents, T11, pp 218-221.
On 14 February 2020, the Department invited the applicant to comment on a significant volume of information that suggested that she had provided inconsistent information in her visitor and protection visa applications. It was pointed out to the applicant that in her application for a protection visa she had claimed that her husband had faced persecution in Iran, but that her husband had returned to Iran on multiple occasions and for extended periods since her application for a protection visa.
Between November 2012 and December 2014, the applicant lived in Malaysia. The invitation from the Department for the applicant to comment pointed out that the applicant, in her application for a visitor visa, had claimed that her husband had been gainfully employed and that she was living a financially secure and comfortable lifestyle in Malaysia. The Department advised the applicant that there was evidence that her husband had continued working for eight Iranian companies whilst he was in Malaysia. The Department pointed out that her husband was able to return to Iran and liquidate assets even though the applicant had asserted that whilst they were in Malaysia the Iranian authorities had infiltrated a Baha’i meeting.
The Department advised the applicant that, even though she claimed that she was a fourth-generation Baha’i member, she had competed two years of military service and her father had worked for the military in a civilian capacity. The Department also pointed out that the applicant and her family had been able to obtain new Iranian passports in 2013 despite claiming that in 2010 her home had been raided by the Iranian authorities because of her faith.
On 14 February 2020, The Department advised the applicant that she provided false information in her claims for a visitor visa[7] and invited her to comment on adverse information.
[7] Exhibit A, T-documents, T19, p 344.
On 17 March 2020, the applicant provided a statutory declaration in response to this invitation.[8] In her statutory declaration she reiterated that she had a fear of harm at the hands of Iranian security authorities. She also claimed that there were factual errors in the invitation to comment. One factual error was in the statement that she served in the military; the applicant claimed that as a female she was unable to serve in the military. I accept the explanation of the applicant that she does not have military service; her explanation is not contradicted by the evidence before the Tribunal.
[8] Exhibit A, T-documents, T20, pp 348-352.
On 26 March 2020, the delegate refused the applicant’s application for citizenship on the basis that she did not meet the good character requirement in 21(2)(h) of the Act. The delegate had concluded that the applicant had provided false or misleading information to the Department on multiple occasions.
LEGISLATIVE FRAMEWORK
Section 20 of the Act provides that a person may become an Australian citizen by conferral if the Minister decides under s 24(1) of the Act to approve the person becoming an Australian citizen. Section 52(1)(b) of the Act provides for the review by the Tribunal of a decision of the Minister under s 24 to refuse to approve a person becoming an Australian citizen.
Section 24(1A) of the Act provides that the Minister must not approve the person becoming an Australian citizen under s 24(1) unless the person is eligible to become an Australian citizen under s 21(2), (3), (4), (5), (6), (7) or (8) of the Act. Section 21(2) of the Act is relevant to this application.
Section 21(2) of the Act provides for the general eligibility criteria for Australian citizenship. Paragraph (h) of s 21(2) requires that, for a person to be eligible to become an Australian citizen, the Minister must be is satisfied that the person is of good character at the time of the Minister’s decision on the application for citizenship. While the term “good character” is not defined in the Act, Citizenship Procedural Instruction number 15 (“CPI 15”) provides some guidance. CPI 15 states that the concept of good character refers to a person’s “enduring moral qualities” which encompass:
(a)characteristics which have endured over a long period of time;
(b)distinguishing right from wrong; and
(c)behaving in an ethical manner and conforming to the rules and values of Australian society.
CPI 15 also provides guidance for factors that may be taken into account in assessing whether an applicant is of good character. Of particular relevance is the consideration of how the applicant has behaved in her interactions with government officials. CPI 15 states:
If the applicant has knowingly presented incorrect information or a bogus document, this may reflect on the person’s character. If the applicant presents the incorrect information or bogus document unknowingly, there would be no ground for character concern.
(Emphasis in original.)
EVIDENCE
Documents
The applicant’s application for a visitor visa with supporting documents is in evidence.[9] Among the supporting documents is the title deed to a property in Iran owned by the applicant.[10]
[9] Exhibit A, T-documents, T4.
[10] Exhibit A, T-documents, T4, p 32.
The applicant’s application for protection visas for her and her family with supporting documents is in evidence.[11] In the application form, the applicant provided descriptions of the persecution and discrimination that she claimed to fear in Iran. She described how, when she was working with the Swedish cosmetics company Oriflame in 2010, her home was raided and she was arrested “without any legal documents.”[12] Among the supporting documents with the protection claim are copies of the judgement of an Iranian court in which the applicant was convicted of “promoting membership of Pyramidic Oriflame Company”, and the judgement of a provincial Court of Appeal in which the penalties on the applicant were reduced.[13] The applicant also provided a statutory declaration dated 30 April 2015 in support of her application for protection visas.[14]
[11] Exhibit A, T-documents, T5.
[12] Exhibit A, T-documents, T5, p 68.
[13] Exhibit A, T-documents, T5, pp, 149-153.
[14] Exhibit A, T-documents, T5, pp 130-139.
The application for a partner visa, made on behalf of the applicant’s husband, is in evidence.[15]
[15] Exhibit A, T-documents, T6, pp 154-187.
The applicant’s application for Australian citizenship with identity documents is also in evidence.[16]
[16] Exhibit A, T-documents, T7, pp 188-209.
The applicant provided to the Department further statutory declarations dated 24 October 2019[17] and 16 March 2020[18] in support of her application for Australian citizenship.
[17] Exhibit A, T-documents, T14, pp 254-265.
[18] Exhibit A, T-documents, T20, pp 348-352.
The applicant relied upon statutory declarations of six character witnesses, a reference from her local high school and a letter from her psychologist.[19]
[19] Exhibit D.
Oral evidence of the applicant
On 15 December 2020, a hearing was held for this application in which the applicant gave evidence by video-link.
The applicant confirmed that she had given a statutory declaration dated 30 April 2015 and that the document is true and correct.[20]
[20] Transcript, p 9, lines 31-36.
The applicant claimed that she was not charged and prosecuted in Iran because of her association with Oriflame alone. The applicant stated:
It was not just because I was working with Oriflame because they entered to my house without any authority permission, and they searched my house, and during the search they saw my photos of (indistinct) photo of my prophet, and they saw the books, and they got all of my books, all of my photos (indistinct) photos, that it wasn’t related to working with Oriflame. And after searching and collecting all of those things, they took me - they blind my eyes, they put something on my eyes, and without knowing that where I’m going, they took me somewhere and they - and when my children asked that, “Where is my mother? Where do you take my mother?” They said, “We will let you know. We can’t tell you about that things.” And they took me for questioning. They put me in solitary confinement for 22 days without having any lawyer, without any light, without any human right. And they questioning me, and the question, it was not related to working with Oriflame. And after 22 days just they charge me with something, and I didn’t have the rights. And it wasn’t - and with that company, 150,000 people working with Oriflame, and if you search that, you can find it. And they just arrested me (indistinct) and the questioning that they had, it wasn’t about the Oriflame my working with that company, because the company legally got all the things from the government, and working, and it has happened just to me. So it wasn’t because the financial things, all of those things, and it was just because of my religion that these things happened to me.[21]
[21] Transcript, p 10.
The applicant gave evidence of the reasons why she did not seek protection after leaving Iran and entering Malaysia in 2012. The applicant stated:
During my court case that I were living in Malaysia I was going to Iran for my court case, and I could come out of the country. And there were a question for the immigration that why you could go and come back, but because at that time I was on bail, and within my court case there is not any prohibition that I couldn’t leave the country. And I didn’t want to make problem for the people, for my friends that put bail on me and trusted on me, and I feel responsible for the person that trusted me and put that bail for me, that I could easily come out of the prison. And I didn't want to hurt my friends and make problem for them. So because of that. And also my lawyer, she told me that because of the investigation that she had, that Oriflame was - there were lots of people that working with Oriflame, and no one had any problem, so it couldn’t be more than financial charge for you, and assured me that it would be (indistinct) as well. So because of that I went to the country to ask - to prepare, present for my court case at that time.[22]
[22] Transcript, p 11.
The applicant gave evidence that the courts that gave judgements against her[23] made no reference to her Baha’i faith because:
Iranian Government never, nowhere, not at any time, would say that we arrested someone for their beliefs, religious beliefs, or their thoughts. They shall never, ever say things like this.[24]
[23] Exhibit A, T-documents, T5, pp 149-153.
[24] Transcript, p 60, lines 20-22.
The applicant gave evidence that, of some 150,000 people involved in Oriflame, only herself and one other Baha’i were prosecuted.[25] The applicant was taken to the judgement of the Iranian “Penal Court” wherein three people, including herself, are listed as the accused. The applicant stated in response:
In terms of forms, perhaps, you know, by mistake I put two people on the form. However, on other statements or other documents that I have submitted, I have put three people and I did not have any intentions, whatsoever, trying to lie or hide anything.[26]
The applicant was then taken to her statutory declaration made on 16 March 2020 where she states: “Only two persons, being me and [another], both Baha’is were charged …”[27] The applicant addressed this inconsistency by stating that she made a mistake.[28]
[25] Transcript, p 64, lines 15-18.
[26] Transcript, p 66, lines 14-17.
[27] Exhibit A, T-documents, T20, p 350, [13].
[28] Transcript, p 66, line 33.
The applicant gave evidence that the Iranian authorities became aware that she had joined the Baha’i faith in 1993 when she was summonsed to the intelligence office for questioning. The applicant gave evidence that, because she “didn’t have legal person that help with all of this process,” she had made a mistake in preparing her documentation where she described the incident in 2010 when the authorities searched her house and discovered framed photographs of the holy leader of the Baha’i faith and Baha’i books.[29]
[29] Transcript, p 12.
Under cross-examination the applicant was challenged on what was submitted by the respondent to be an inconsistency between her assertion that the Iranian authorities became aware that she was of the Baha’i faith in 1993 and her account of her Baha’i faith emerging in 2010. The applicant was in my opinion unable to give a coherent account of this inconsistency.[30]
[30] Transcript, pp 68-70.
The applicant gave evidence of declaring her daughter’s faith as Baha’i in her secondary school enrolment application form in 2006. The applicant stated:
Whenever we apply for my children, they had a form and they were asking about the faith of the - religion of the student, and always I mentioned that we are Baha’is. And even because my daughter, she was really smart and it was - she wanted to go to a good school, and they ask that why, tell us about your religion, and why did you choose the religion? And even my daughter explained that, “I am Baha’i and I choose my religion because of this,” but at the middle of the year they fired her from the school and they didn’t let her to continue study at that time. And it was another trouble for me and for my daughter, that I was looking for another school, and none of the school, they didn’t want to. And because they fired my - because of her religion they didn’t want to apply my daughter - enrol my daughter. And finally I found my previous principal and ask her, and she introduced us to one of the friends, and they enrolled my daughter in their school. It was a private school.[31]
[31] Transcript, p 13.
The applicant gave evidence explaining why she thought it was safe for her to return to Malaysia in 2017 in light of the claims she had raised in her protection visa application in December of 2014. The applicant stated:
Because at that time … I went to Malaysia with the Australian … travel document. I had Australian travel document and I was travelling with that, and I was feeling really safe because I was thinking that if something happened to me the Australian Government will support me at that time. And it was for a short term, and I didn’t see my family for a few years, so it was a reunion. And I asked my parents to came there, and we visit there, and it was really short-term, and we didn’t go to any Baha’i meeting or something like that, just we went to visit my parents and came back. And it was around more than one and a half year from that time that happened, that those things happened for me in Malaysia. And I didn’t think that if I go slowly and visit with Australian travel document and visit my parents, that maybe something bad happen for me, or something knew about my travel to - at that time to Malaysia.[32]
[32] Transcript, p 14, lines 6-18.
The applicant in giving evidence claimed that her previous visits to different parts of Australia and Europe were not for the purpose of deciding where in Europe or Australia to settle once she had applied for a protection visa. The applicant stated:
At that time that I got the tourist visa for visiting Australia, we came to visit Australia because we have the Baha’i (indistinct) in Sydney and we didn’t have the right, we didn't - we couldn’t go to (indistinct) pilgrimage, so it was really important for us to come and visit Sydney. And also my children, my daughter, she studied architecture, and she would like to come and visit everything, and my son also, the exhibition. And we would like to come and see the (indistinct). And the second time that we came here we visit our family friends that they already came to Malaysia and visited us with the family there, and he invited us to come and visit them in Perth. And that Europe, the trip that I had to Europe, also I visited my family friends. They invited us to go to Sweden. They already came to Malaysia with their family and spent some time with us, and they invited us to go there, and I went with my husband there, and I didn't have any intention to ask for a protection visa over there or stay more there, it was just for a visit.

Under cross-examination, the applicant accepted that, in her application for a visitor visa, she stated that she wished to visit Australia from 15 December 2013 to 25 December 2013 (being 10 days) and that she stated she did not intend to enter Australia on more than one occasion.[33] The applicant was asked whether it might have been something of interest to the Department that she had planned four visits to different locations in Australian instead of one visit for 10 days. The applicant responded:
Because I got one-year visitor visa. And because of that, I decided when they gave me this opportunity to go and visit Australia, the first time just I came to Sydney. And the next time, I had my friends, family friends. I already told you that they came to Australia and they visit us. And they were living in Perth. The second time we were we went to Perth to visit them and we have stayed in their house. And the other time, I again, came when the first time I came to Australia, I went to Madelescar (indistinct) to the Baha’i Temple in Sydney. And that time, I found that we found that my children can came here as a can come here as a volunteer and do volunteer job in temple, Baha’i Temple. So when we went back, my children ask for that volunteer work. And they accepted her. So we went we came back to Sydney and at that time. And we are safe with my children here for one month.[34]
The applicant gave evidence that she did not intend to mislead the Department by stating that she only wished to visit Australia for 10 days. She stated that, “when I received the one‑year visa … they gave me this chance to come, so I came many times.”[35]
[33] Transcript, p 56.
[34] Transcript, p 57, lines 22-34.
[35] Transcript, p 59, lines 28-29.
The applicant stated that her family’s trips to Australia and Europe happened “before 2014, November 2014, [which was before] I got those notice from the National Spiritual Assembly of Malaysia.”[36] The applicant explained what she meant when she referred to a notice from the National Spiritual Assembly of the Baha’is of Malaysia.[37] She stated that she had a lot of friends who were not Baha’i but who were interested in the faith, and that they came to her house for a “devotional” and a “children class”. She stated that someone from the National Spiritual Assembly of Malaysia invited her to his house and that he informed her that one of the people who purported to be interested in the faith was an Iranian spy, that there was a “security issue” for her family in Malaysia, and that “it was under the investigation of the Malaysian police at that time.”[38]
[36] Transcript, p 14, lines 27-42.
[37] See Exhibit A, T-documents, T5, p 143.
[38] Transcript, p 15, lines 5-16.
Under examination-in-chief, the applicant gave evidence explaining why she left Iran to settle in Malaysia long-term. The applicant stated:
It was for my religion’s persecution, and also for the study of my children, because my daughter, she had problem with going to school in Iran. She was really smart. And also she couldn’t go to the university, as I couldn’t go to the university, and as I couldn’t have a higher education there [in Iran]. So it was for both of that, because they couldn’t go to the university [in Iran]. She couldn’t study there. And also after they [searched] through to my house at 2010 and they took me to the confinement, solitary, to the prison for 21 days without any right, and I escape, and I couldn’t leave there, even my children. Any time - they didn’t feel safe. Any time they were thinking that someone may come to our house and may something bad happen to them. And I didn’t feel safe anymore after that in Iran. So because of that I moved Iran [from] and I went to Malaysia to living there. And also my children can study there.[39]
[39] Transcript, p 16, lines 4-17.
Under cross-examination, the applicant denied that said she escaped from solitary detention.[40] It is clear, however, from the transcript of the proceedings that the applicant did say: “they took me to the confinement, solitary, to the prison for 21 days without any right, and I escape, and I couldn’t leave there, even my children.” The applicant stated under cross-examination that she was released on bail after 21 days.[41] I have taken the references by the applicant to “escape” to refer to the granting of bail and not to a physical escape from the prison.
[40] Transcript, p 20, line 16.
[41] Transcript, p 20, lines 21-23; lines 30-33.
The applicant gave evidence explaining why she remained in Malaysia for 24 days after she became aware that a threat existed there against the safety of her children and the other reasons which she claimed in her protection visa application in December of 2014. The applicant stated:
Because when I found about the - my security issue, I have prepare my living in Malaysia for 10 years. I rent a house, I bought lots of furniture, I bought two car under finance, and I couldn’t do all of these things in one life. And I need to finalise all of these things. For the few first days, maybe for first week we were in shock and we didn’t know what should we do. The first thing that we did, we went to my friend’s house and I stayed with her because we didn’t feel safe to stay home. And after a week we decided to - what should we do - and we organised for all of those things. And it would take time, because personally I believe that I shouldn’t do anything illegal, and I believe in moral and ethical things. I owed money to the government. … I couldn’t just put everythings over there and just came out. And … it took time for me to find the agent and told her that I need to empty the house. And I found somewhere that I sent all of the furniture over there that I could. And after that, I clean the house and pass the key to her. And also it took time for me to organise. And I didn’t have any family friends or any siblings over there that I can ask them to do these things for me, so I should do all of these things. And it took 24 days for me. Even I can add here that I enrolled my children in - my son in international school; and my daughter, she was going to the university. I paid in advance all of the tuition fee, and I didn’t have time to go after all those money, and I just - and because I didn’t have time, I just left it. But with the legal things, with all paperwork, with all those things I should have complete this, because we believe that we should obey the government and we should be honest - honest, and we should be - do the things legally everywhere that we live.[42]
[42] Transcript, p 16, line 24 to p 17, line 2.
The applicant gave evidence that when she said, “we believe that we should obey the government”, she was referring to all members of the Baha’i faith, including herself and her family. The applicant stated that not leaving Malaysia for 24 days was not just a religious obligation, but that it was a human obligation, “that I shouldn’t do anything that’s illegal in that country.”[43]
[43] Transcript, p 19, lines 44-46; p 20, line 5.
The applicant gave evidence that when she returned to Malaysia for a holiday in July 2017, which was some 16 months after her protection visa was granted on 31 March 2016, she assumed that she would be protected because she held an Australian travel document. She also stated that no one in Malaysia knew about her trip.[44]
[44] Transcript, p 72, lines 38-45.
The applicant was asked by her advocate in examination-in-chief, “why did you not disclose your financial convictions in Iran when you applied for citizenship in Australia?” The applicant answered:
I’m so sorry about that. I didn’t get any legal advice, and it was my mistake. I’m so sorry about that I didn’t do this. But I was thinking that because I already - in my protection visa I have a statement and I completely explained that, and I was thinking that all those things was past accusation and it was because of my religion that happened to me, so I shouldn’t - I don’t need to tick it or do it. But I’m so sorry for this mistake. But I didn’t have any intention to hide something, because I’ve already passed all of my information about that court case, and all of the translation of the newspaper, and all of those things to the government, and Australian Government knew about that.[45]
[45] Transcript, p 17, lines 7-16.
The applicant gave evidence that she did not give false or misleading information to the Department of Home Affairs. She stated:
I didn’t have any false or misleading information, I just - I mistakenly - unpurposely [sic] I did some mistake, for example that I mention before, for the - in my citizenship application, that I didn’t tick that one. But I didn’t give any false or misleading information. And I’m so sorry that I think that all of these things happen because I’m not good in English, and I did prepare all of my document. I didn’t have any legal advice or interpretation for all of these things. And I was (indistinct) stress. And I think just is - is just misunderstanding of me and misinterpretation of my life story, that I did it many times. It was all because of that. But I’m so sorry from the government if this, my weakness in English and interpretation, all of these things happen and I make this problem for the government.[46]
[46] Transcript, p 18, lines 9-20.
Under cross-examination, the applicant was asked whether it was wrong for her to have incorrectly answered “no” to the question “Have you ever been convicted of a crime or offence in any country?” on her application for a visitor visa. The applicant answered:
I do apologise for what has happened. I can say that was not on purpose and perhaps the reason why this was mentioned here because this was a false allegation – you know – made against me related to my faith or religion.[47]
The applicant then stated that she did not understand the question in the application form.[48] It was suggested to the applicant that it cannot be the case that she did not understand the question but that she also answered the question intentionally by saying “no” because it was a false allegation based on religious reasons. The applicant responded, stating:
That was my misunderstanding, this perception of the question and perhaps, as I have said, in my opinion, this was related to my religion and what I was thinking, you know, I myself did not commit a crime because they didn’t use the term ‘sin’. I did not commit a sin and, again, I reiterate it was not on purpose. I had no intention.[49]
[47] Transcript, p 32, lines 22-25.
[48] Transcript, p 32, line 31.
[49] Transcript, p 32, lines 38-43.
The applicant was asked under cross-examination why her answer to the question of whether she had ever “committed or been convicted of a crime or offence in any country”[50] in her protection visa application differed from her answer to the same question in her visitor visa application. The applicant answered:
But it was the second time that I proved this form and I saw the question. I answered that. I didn’t have any intention that – do that – that one on this way and this one in this way.[51]
[50] Exhibit A, T-documents, T5, p 44.
[51] Transcript, p 33, lines 22-24.
The applicant was also taken to her Application for Australian citizenship[52] at question 39(a) where she answered “No” to the question: “Have you been convicted of, or found guilty of, ANY offences overseas or in Australia …?” The applicant stated:
I didn’t get any legal advice for all of this form that I filled it and I did it by myself. So I’m so sorry for any mistake and that I did here. I said that at this time for my citizen application the government knew everything about me and all of – they have all of my documents and all of my assessments.[53]
The applicant then stated that she did not think she needed to disclose things she had already disclosed because, “the Department of Immigration have all the details and that was not my intention to hide anything.”[54]
[52] Exhibit A, T-documents, T7, pp 188-206.
[53] Transcript, p 34, lines 1-4.
[54] Transcript, p 34, lines 9-10.
The applicant gave evidence that, before her husband left Australia for Iran, she attempted to withdraw his name from her own protection visa application as a secondary visa applicant. The applicant stated that she informed her migration agent that her husband wanted to return to Iran and that he did not want to be listed as a secondary visa applicant on her protection visa. She further stated that her migration agent sent an email “to the government” informing the government that her husband no longer wanted to be included in her protection visa.[55]
[55] Transcript, p 18, lines 37-41.
The applicant gave evidence that, in her protection visa application, she mistakenly raised a protection claim for her husband. She stated: “clearly he didn’t want to include in the protection visa, and he went to Iran.”[56]
[56] Transcript, p 19, lines 1-3.
The applicant asserted that she did not provide any false or misleading information as a sponsor to her husband’s partner visa application.[57]
[57] Transcript, p 19, line 14.
Under cross-examination, the applicant agreed that it is wrong for a person to provide false or misleading information in support of a visa application. She stated that she thinks it is wrong because, “I stick to morality. I stick to such principles.”[58] The applicant accepted that if a person has provided false or misleading information in support of a visa application, that might suggest they don’t have a good character.[59]
[58] Transcript, p 21, line 22.
[59] Transcript, p 21, lines 23-28.
The applicant was referred to her Application for a Visitor visa.[60] Question 17 of that form asks: “In what country are you currently located?” The applicant has answered question 17: “Malaysia”. Question 19 of the form asks: “What is the purpose of your stay in your current location and what is your visa status?” The applicant has answered question 19: “Education of my children, Malaysia Second Home Visa.” Under cross-examination, the applicant was asked whether there was any mention of her being persecuted in Iran in that application. The applicant answered that she wrote “education of my children” in answer to question 19 because, “at that time I was feeling safe in Malaysia and I was building my second home there.”[61] It was put to the applicant that “[i]t would have been correct for you to say in the visitor visa application, your stay in Malaysia was because you couldn’t go back to Iran because you feared you would be killed.” The applicant answered:
No, I stayed in Malaysia for my education of my children. Also I fear for my persecution that I had. But I felt safe in Malaysia at that time, because I got my second home visa, and I was feeling that because I am living in Malaysia, there is not any problem for me. At that time I could teach my faith freely. I could join to the feast, I could join to the Baha’i activity. I did volunteer work for my Baha’i community, and there were not any problem over there. So I was thinking that it will be continue, until at that time that I received that notice from Mr Sena that all of those fear that I had, it comes back to me. And at that time I found that because I have my Iranian passport, in any part of the world that I am going with their passport, the government of Iran can make problem for me. And as I have told before, I fill all of this information without any legal advice, and I fill all of those things myself.[62]
[60] Exhibit A, T-documents, T4, pp 13-23.
[61] Transcript, p 25, lines 35-36.
[62] Transcript, p 26, lines 1-13.
The applicant was asked whether, given the visitor visa is only a temporary visa, she thought that her prospects of getting a visitor visa would have been affected if she had told the Department that she thought she would be killed if she went back to her home country. The applicant answered: “I didn’t think about it at that time that I was filling the visitor visa.”[63] The applicant gave evidence that she did not think about the question deeply and that she read the question and answered what came to her mind at the time.[64]
[63] Transcript, p 27, lines 1-7.
[64] Transcript, p 28, lines 5-6.
The applicant was taken to the title deed to her property in Iran which was submitted with her application for a visitor visa.[65] The applicant agreed that she submitted the title deed in response to the statement on page 22 of the application for a visitor visa form which asks the applicant to submit documentation including: “other information that show that you have an incentive and authority to return to your country of residence, such as property or other significant assets in your home country”. It was put to the applicant that the property she owned in Iran was not in fact an incentive for her to return to Iran because she feared persecution in Iran. The applicant answered: “At that time in Malaysia I was feeling safe and secure, and I did not have such feeling at that time.”[66] The applicant gave evidence that she did not think it was misleading to submit the title deed to her property in Iran as evidence that she had an incentive to return to Iran at the time of her application for a visitor visa. [67]
[65] Exhibit A, T-documents, T4, p 32.
[66] Transcript, p 29, lines 1-2.
[67] Transcript, p 32, lines 13-15.
The applicant accepted that her application for a visitor visa was filled out in November 2013.[68] The applicant also accepted that in August 2013 the Iranian Court of Appeal convicted her of what she said was a religious based crime.[69] It was put to the applicant that when she filed the visitor visa application form three months after the conviction she did not state that she feared harm in Iran. The applicant stated that “someone being persecuted always will have the fear but, at the time of completing the form, what came to my mind at the time I just put it on the paper.”[70]
Evidence of Jacqueline Medvecka
[68] Transcript, p 31, line 7.
[69] Transcript, p 31, line 13.
[70] Transcript, p 31, lines 38-44.
The applicant called Ms Jacqueline Medvecka to give evidence at the hearing as a character witness.
Ms Medvecka told the Tribunal that she was a retired sociologist and organisational strategist.[71]
[71] Transcript, p 42, lines 40-41.
Ms Medvecka gave evidence that she had known the applicant for some five years.
Ms Medvecka provided a character reference for the applicant in the form of a statutory declaration.[72] She stated that she was not specifically aware of the reason why the applicant had requested her to write a character reference for her. She only knew “that there was a problem with her application [for Australian citizenship] and she needed a character reference but I knew no other details at all.”[73]
[72] Exhibit D, statutory declaration of Jacqueline Medvecka dated 10 June 2020.
[73] Transcript, p 43, lines 10-12.
Ms Medvecka gave evidence that on the morning of the hearing she was given an opportunity to read the T-documents (Exhibit A).[74] Ms Medvecka asserted that her good opinion of the applicant was even stronger after having read the T-documents.[75] Ms Medvecka clarified under cross-examination that she had not read the whole of the T‑documents but that she had skimmed them.[76]
[74] Transcript, p 43, lines 11-20.
[75] Transcript, p 43, line 27.
[76] Transcript, p 44, line 3.
Ms Medvecka asserted that she wrote her statutory declaration and that its contents were her choice of words, but she then conceded that much of the statutory declaration followed a “format”.[77] Ms Medvecka accepted that paragraph 6 of her statutory declaration is identical to paragraph 6 of the statutory declaration of another character witness, Ms Tarana Cocklari. I have read paragraph 6 of both of these witness’s statutory declarations. The paragraphs are not in fact identical, but they are effectively identical.
[77] Transcript, p 45, lines 31-34.
Evidence of Moira Cathcart
The applicant called Ms Moira Cathcart to give evidence at the hearing. Ms Cathcart told the Tribunal that she had treated the applicant as her psychologist. Ms Cathcart gave evidence that she had held 13 sessions with the applicant.[78]
[78] Transcript, p 49, lines 40-41.

Ms Cathcart provided a letter regarding the applicant.[79] Ms Cathcart stated that, when she wrote her letter, she was aware of the reason that the applicant had asked her to provide a character reference.[80]
[79] Exhibit D, letter of Moira Cathcart dated 15 June 2020.
[80] Transcript, p 48, line 46.
Prior to giving evidence, Ms Cathcart had read and made copies of certain parts of the T‑documents. Ms Cathcart gave evidence that, having read some of the T-documents, she stood by her opinion of the applicant as stated in her letter. She stated that what she read of the T-documents seemed consistent with what she had recorded in her clinical notes about the applicant.[81]
[81] Transcript, p 49, lines 23-29.
Ms Cathcart confirmed that there are no references to the applicant’s court case in Iran nor any references to spies in Malaysia in her clinical notes.[82]
[82] Transcript, p 50, lines 15-20.
Evidence of Siavash Es’haghi
The applicant called Dr Siavash Es’haghi to give evidence as a character witness.
Dr Es’haghi is a radiologist. Dr Es’haghi gave evidence that he has known the applicant and her family from childhood and that their parents were related.[83]
[83] Transcript, p 52, lines 15-18.
Dr Es’haghi stated that he had read the documents (presumably the T-documents) and that he confirms his belief that the applicant is of good character, as stated in his statutory declaration.[84]
[84] Exhibit D, statutory declaration of Siavash Es’haghi dated 5 June 2020.
The respondent asked Dr Es’haghi whether he wrote his statement from scratch. Dr Es’haghi stated that he looked at other statements as examples.[85]
[85] Transcript, p 53, lines 29-32.
SUBMISSIONS
The applicant admits to having made unintentional errors arising from her lack of understanding of certain questions in various application forms she has completed. She denies having engaged in any deliberate scheme to mislead the Department as evident by the supporting documents she has voluntarily submitted in support of her citizenship application. The applicant rejects any assertion that she has deliberately provided any false or misleading information in any of her interactions with the Department or the Tribunal.
The applicant submits that she is a person of good character and that she demonstrated a pattern of exemplary community behaviour over the period of more than 6 years that the family has been living in Australia. She is a valued contributor and good standing member of Brisbane Baha’i community. The applicant has completed an accounting degree at the University of Canberra and has briefly worked as a tax accountant in Australia.
The applicant advised that, apart from the charges and convictions arising from her cooperation with the Swedish cosmetic multinational (Oriflame) which she voluntarily disclosed within the volume of documents she submitted in support of her protection application (although not disclosed in the character declaration section of application form as she was legally required), she has never had any adverse interactions with any of the law enforcement authorities of any of the three countries she has lived in with her family. This is with the exception of episodes of harassment and persecutory treatment to which she was subjected at the hands of Iranian security authorities on the account of her banned faith. It was submitted that her long history of good conduct demonstrates a pattern of behaviour consistent with general conduct of a person who possesses good character as intended by s 21(2)(h) of the Act and guided by Chapter 11 of Citizenship Policy document that provides practical instructions for application determination purposes.[86]
[86] Exhibit A, T-documents, T24, pp 379-391.
CONSIDERATION
In Prasad and Minister of Immigration and Ethnic Affairs [1994] AATA 326, Deputy President McDonald, who had regard to previous presidential decisions of this Tribunal,[87] remarked that:
A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
[87] Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, (Deputy President McMahon); Naidu and Department of Immigration and Ethnic Affairs [1994] AATA 287, (Deputy President Forrest).
In considering whether the applicant is of good character, I have had regard to the evidence that was put forward on behalf of the applicant and respondent. It is positive that the applicant had in 2015 obtained a certificate of appreciation from a local high school that referred to her “valuable help with tutoring and classroom support”.
Character references
The applicant has put forward character references as evidence of her good character. The respondent has submitted that little weight can be placed on the applicant’s character references. The respondent has pointed out that most of these references are nearly identical. Certainly, the persons who have provided character references may not have provided character references before and may have had regard to the documents prepared by other persons. That of itself is not a reason to accord little weight to the character references.
The references that were provided by six persons were in what I refer to as a “uniform format”. Paragraph 5 of each reference in the uniform format states that:
her application for Australian citizenship by conferral that has already been refused by Home Affairs Department based on findings of Sonia Jahedikargar has provided false or misleading information in her protection visa application, hence, she is not a person of good character.
Paragraph 6 of each reference, with minor variations, contained the following:
Over the years that I have known Sonia Jahedikargar she’s proven herself to me as a trustworthy, honest, hardworking, ethical, responsible, helpful, charitable and generous person. Moreover, I can vouch for the fact that she vehemently upholds the moral and ethical values instructed to her as a devoted follower of the Baha’i faith.
Paragraph 7 of the references refer to the applicant having made this application to this Tribunal.
Three of the persons who provided character references were called as witnesses by the applicant, they were Ms Medvecka, Ms Cathcart and Dr Es’haghi.
Ms Medvecka informed the Tribunal that she had known the applicant for some five years. Certainly, Ms Medvecka who provided a reference informed the Tribunal that she followed a “format” and that of itself is not a criticism of such a process provided she believed what she said in her reference. Ms Medvecka gave evidence that when she provided her character reference she was unaware of why the applicant requested her to provide that character reference. In giving evidence she remarked: “She only said to me that there was a problem with her application, and she needed a character reference but I knew no other details at all”. The reference provided by Ms Medvecka was in the uniform format that the other five persons had provided. It is apparent that Ms Medvecka may not have recalled that paragraph 5 of her application refers to the false declaration in the application for a protection visa. It should have been apparent from paragraph 7 of her reference that her reference would be tendered as evidence in this Tribunal.
Ms Medvecka informed the Tribunal that on the morning of the hearing she had read some documents that the applicant had sent her. The applicant had sent Ms Medvecka a list of T-Documents[88] and the respondent’s Statement of Facts, Issues and Contentions.[89] In giving her evidence before the Tribunal it is my opinion that Ms Medvecka was acting more as an advocate for the applicant rather than as a character witness. I consider that it is not desirable for a character witness to be provided with documentation concerning the issues that the Tribunal has to decide.
[88] Exhibit A.
[89] Exhibit B.
Ms Medvecka stated that she was aware that there “were about eight points” that were “probably seen as deception against the government authority”. Ms Medvecka was referring to the “eight issues” that were mentioned in the respondent’s Statement of Facts, Issues and Contentions. Ms Medvecka remarked that:
in the visitor application visa it’s said that she stated that she left Iran for the sake of the education of her children and later that she said she left Iran because of …. her fear of religious persecutions. And these two points for me are not contradictory at all”. Ms Medvecka also mentioned that the applicant “applied for a visitor visa and said she wouldn’t stay in the country for long which is quite possible.
While Ms Medvecka has given her opinions on matters that have to be considered by the Tribunal, she had not read the T-documents which exceeded 400 pages.
Ms Cathcart, psychologist, gave evidence that she has known the applicant since 2015 and had treated the applicant under a mental health care plan approved by the general practitioner of the applicant. Prior to the hearing, the applicant had provided Ms Cathcart with a copy of her application for a protection visa (T5). In her reference, Ms Cathcart had stated that the refusal of citizenship had “escalated anxiety and of concern, retriggering of trauma”. Under cross-examination Ms Cathcart confirmed that the notes of her consultation do not contain any reference to a court case in Iran or spies in Malaysia.
The character reference of Dr Es’haghi was in the uniform format (which incorporated paragraph 6) that the other five persons had provided. Dr Es’haghi in giving evidence stated that he had known the applicant for some 35 years. Dr Es’haghi had left Iran as a refugee and studied in New Zealand. After he finished his degree as a medical doctor, he migrated to Australia as a New Zealand citizen. Dr Es’haghi was brought up in the Baha’i faith. He stated that he has many cousins and family still in Iran, who live there and “they have lived there for the last 40 years under oppression, and under many circumstances, and they chose to stay there as their faith”. Dr Es’haghi stated that if a person had intentionally tried to deceive the Immigration Department or the Government, then obviously that’s not acceptable.
It is difficult to give the character references any great weight because they do not contain facts upon which I can make a finding of good character. The references that are in the uniform format cannot in my view be accorded any great weight because the references themselves do not contain facts which provide support for the opinion as expressed in paragraph 6 of that format. I certainly accept that the fact that the applicant has obtained these character references is evidence of her good standing in the local Baha’i community. These references certainly indicate that her associates hold her in high regard.
The six references that are in the uniform format refer to the applicant having made a false answer and a false declaration in her application for a protection visa. The various character references that are in evidence before me make no mention of the reasons why the application of the application for Australian citizenship having failed. It is difficult to place great weight on these character references in assessing whether the applicant is of good character.
The Statement of Facts, Issues and Contentions of the respondent that was filed under the General Practice Direction[90] is an important document which identifies the points of difference between an applicant and a respondent.[91] One of the issues that was identified by the respondent prior to the hearing was the fact that the applicant did not disclose her Iranian criminal conviction in her application for Australian citizenship.[92] The character references that the applicant has provided did not indicate that the persons who provided those character references fully appreciated the reasons why the application for citizenship was declined. The references refer to a false declaration of the applicant in her protection visa but do not refer to the false declarations in the application for Australian citizenship and her application for a visitor visa. The references do not provide me with any indication that the applicant has any remorse for her conduct in not disclosing her Iranian criminal conviction in her application for Australian citizenship and her application for a visitor visa thereby providing a false declaration.
[90] Administrative Appeals Tribunal, General Practice Direction, (issued 28 February 2019).
[91] Warren v Repatriation Commission (2008) 167 FCR 511 at 533-534 per Logan J.
[92] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions, [48].
Failure to disclose conviction
One of the matters of concern to the Tribunal is whether it can be said that the applicant has engaged in prolonged deception against the Government. In her two documents in 2013 and in 2018, she did not disclose her Iranian criminal conviction. Before the Tribunal the applicant informed her migration agent that she did not provide any false or misleading information other than the question about the convictions in the citizenship application. However, this is not correct because the applicant did not disclose her Iranian criminal conviction in 2013 when she made her application for a visitor visa. In her application the applicant answered “No” to the question of whether she had been convicted of a crime or offence in any country (T4).[93] The applicant in my opinion has provided a false statement in her statutory declaration that she made on 16 March 2020 when she stated that she did not provide any false or misleading information in her application for a visitor visa.[94] It is difficult to see how the applicant could have made an assertion that she did not provide any false or misleading information in any other document that she provided to the Department.
[93] Exhibit A, T-documents, T4, p 18.
[94] Exhibit A, T-documents, T20, p 351, [27].
In the hearing it was put to the applicant that declaring a criminal conviction on her visitor visa application may have had a negative effect on the outcome of that application. The applicant in giving evidence answered: “I do not think someone who has been persecuted because of their religion and faith or their human right has been disregarded to such things to be considered as a criminal offence in a different country”. This explanation of the applicant indicates that she is not remorseful for providing a false answer. I do not accept this explanation of the applicant because she disclosed her offence in her application for a protection visa.
I have come to the conclusion that the applicant did not disclose her conviction in her application for a visitor visa because of the probability of the visitor visa being denied by the Department.
In 2014 the applicant had declared in her application for a protection visa that she had been convicted of a crime or offence. In that application she stated that she had been arrested because she was a Baha’i. I consider that her decision to not disclose her offence in her 2013 application but later disclose it in her 2014 application was to provide a colourable basis for her claim that that she had been persecuted because of her Baha’i belief.
It is a matter of concern that the applicant did not disclose her Iranian criminal conviction when she made her application for Australian citizenship in 2018. In that application the applicant had answered “No” to the question of whether she had ever been convicted of “ANY offences overseas”. Under cross-examination the applicant was asked if she accepted that declaring a criminal conviction on her visitor visa application may have had a negative effect to the outcome of her citizenship application. The applicant answered: “Why should that be of impact on citizenship application?” Her answer unfortunately indicates that she still does not appreciate the importance of being truthful in an application for Australian citizenship. Her answer also renders somewhat hollow her assertion before this Tribunal that she is “sorry for this mistake”.[95] In my opinion her answer indicates that she is certainly not remorseful for her conduct.
[95] See [‎43] of these reasons.
I do not accept that there could be any language difficulties which prevented the applicant from providing a truthful answer in her application for a visitor visa and her application for Australian citizenship. The applicant in 2019 had graduated with an accountancy degree from an Australian university. There is no cogent evidence that the applicant had language difficulties in completing her application for Australian citizenship in 2018. The applicant in her statutory declaration dated 16 March 2020 declared that her English has improved as a result of completing a bachelor’s degree in Australia.[96] The fact that she had declared her Iranian conviction in 2014 when she made her application for a protection visa certainly fortifies my conclusion that the applicant was certainly aware of the significance of her Iranian conviction.
[96] Exhibit A, T-documents, T20, p 350.
In both her application for a visitor visa and her application for Australian citizenship the applicant has given a false answer to the unambiguous question which requires the applicant to disclose if she had been convicted of a crime or offence in any country. I consider that the applicant was guilty of deception on both occasions. The declaration in both forms that was signed by the applicant required the applicant to be truthful. In her application for Australian citizenship the applicant did “declare that the information I have supplied in this form is complete, truthful and correct”.
This Tribunal has consistently regarded honesty in making statements to Departmental officers as being indicative of the good character of an applicant. In Re Lachmaiya and Department of Immigration and Ethnic Affairs (1996) 19 AAR 148, Deputy President McMahon stated (at 155-156):
These are overall requirements important in the administration of immigration procedures. 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.
The failure of the applicant to be honest in her application for a visitor visa and her application for Australian citizenship is in my view indicative of her lack of good character.
This conduct of the applicant has in my opinion been calculating in selectively disclosing the Iranian conviction. Her conduct which indicates a disregard for Australian laws[97] is relevant in my assessment that the applicant is not of good character. This Tribunal has previously found that prolonged deception against a government body weighs against an applicant’s good character.[98]
[97] Davies and Minister for Immigration and Multicultural Affairs [2000] AATA 509 (Deputy President McMahon).
[98] Nguyen and Minister for Home Affairs [2019] AATA 998 at [49] (Deputy President Constance); Ghumaan and Minister for Home Affairs [2019] AATA 200 at [166] (Senior Member Puplick).
I have concluded that the applicant is not of good character in providing a false answer to question 39(a) in her application for Australian citizenship which required her to answer whether she had ever been convicted or found guilty of “ANY” offences overseas. By providing a false answer, she has also made a false declaration by declaring that the information that she has provided is “complete, truthful and correct”. I have also concluded that the applicant is not of good character having regard to her false answer and her statutory declaration that she made on 16 March 2020 when she stated that she did not provide any false or misleading information in her application for a visitor visa.

My finding that the applicant is not of good character is an assessment at the time the decision of the delegate of the Minister in terms of the guidance provided in the relevant policy document[99] as well as the time of my decision. There is no indication that the applicant has at the time of either decision indicated any remorse for making a false declaration in her application for a visitor visa and her application for Australian citizenship. Indeed, in giving evidence before the Tribunal the applicant raised the question of why providing a false answer should “be of impact”[100] on her citizenship application. I regard this statement as indicating that the applicant lacks remorse and still does not appreciate the importance of providing a truthful declaration.
[99] Exhibit E, Australian Citizenship (Policy Statement).
[100] Transcript, p 36, line 11.
Claims of persecution
In her application for a protection visa the applicant had made the claim that she was prosecuted because of her Baha’i faith. In her application she remarked: “I was arrested because I am a Baha’i".[101] She claimed that in 1996 she was convicted for “Being Baha’i and being married to Baha’i person” and that in 2010 she was convicted for “Pretence worked for Sweden company as a Baha’i”.[102] There is no cogent evidence to support the claim of the applicant that she was convicted of the offences that she has outlined in her application for a protection visa. I do not accept the assertion of the applicant that in 1996 she was convicted for being Baha’i and being married to a Baha’i person. There is no cogent evidence to support this assertion because it is inconsistent with the submission of the migration agent that the applicant and her family have in Iran always declared themselves as Muslims.[103] In these reasons I will outline why I am firmly of the view that there is no basis in the claim of the applicant that she was prosecuted because of her claimed Baha’i faith.
[101] Exhibit A, T-documents, T5, p 44.
[102] Exhibit A, T-documents, T5, p 65.
[103] Exhibit D, Submissions of the Applicant, 16 June 2020, [6].
The judgement of the Iranian Court of Appeal that is in evidence before the Tribunal confirms that the applicant was prosecuted in Iran because of her involvement with the Oriflame Company. At first instance the three persons who were prosecuted were sentenced to “six months imprisonment, and monetary punishment of payment of a sum twice as much as the abovementioned money earned”.[104] The Court of Appeal upheld the finding of the magistrate concerning the “pyramidic nature”[105] of the company. The Court of Appeal also upheld the “criminality of the plaintiffs”. This reference to the “plaintiffs” included a reference to the applicant who is named as one of the appeal plaintiffs. The Court of Appeal set aside the order for each “appeal plaintiff” to serve “6 months correctional imprisonment”. Instead, each appeal plaintiff was required to pay a fine of “twenty million Rials”.[106] The applicant stated that the amount of this fine was equivalent to US $2,200.
[104] Exhibit A, T-documents, T5, p 150.
[105] Exhibit A, T-documents, T5, p 152.
[106] Exhibit A, T-documents, T5, p 152.
The Court of Appeal gave consideration to the amount of profit that each appeal plaintiff (including the applicant) could receive, and in doing this the Court of Appeal applied “canonically acceptable and Halal” principles.[107] The Court of Appeal in applying these acceptable (Halal) Islamic principles decided to reduce the fine on the plaintiffs for her involvement with the Oriflame Company. The Court of Appeal explained that it was impermissible for each plaintiff to be fined double the amount that they had received.
[107] Exhibit A, T-documents, T5, p 153.
I have concluded that the applicant was prosecuted because of her involvement in a pyramid scheme. Indeed the applicant in her statutory declaration dated 16 March 2020 admitted that she was prosecuted “for commission of offences relating to involvement in pyramidic companies.”[108] It is not plausible that the applicant was persecuted because of her Baha’i faith when the Court of Appeal applied Islamic principles to ensure that each appeal plaintiff was not fined any more money than she had received as profit from her involvement with the Oriflame Company.
[108] Exhibit A, T-documents, T20, p 350, [13].
I have concluded that the reasons why the Iranian authorities had prosecuted persons involved with the company had nothing to do with the faith of those prosecuted. Indeed, it is the case of the applicant that her faith had only been apparent (or “emerged”)[109] when the agents of the Information Ministry had raided her home on 23 October 2010. I consider the reasons why she was prosecuted was because of her infringement of the law against the derangement of the economic system of Iran.[110] A newspaper article that is relied upon by the applicant points to the activities of the company resulting in the transfer of considerable foreign exchange outside Iran.[111]
[109] Exhibit A, T-documents, T5, p 132.
[110] Exhibit A, T-documents, T5, p 150.
[111] Exhibit A, T-documents, T5, p 140.
The recollection of the applicant concerning her involvement in the Oriflame Company case is certainly not accurate. In giving her evidence the applicant remarked that, out of 150,000 people co-operating with this firm, it was just her and another fellow Baha’i member who “got caught”. However, a newspaper article that is relied upon by the applicant mentions that two main officials of the company who had a large number of people under their scheme were arrested.[112] The applicant has not provided any cogent evidence to contradict the conclusion of the delegate that it appears that the applicant was charged as a company director for breaching a law in Iran governing the establishment and business structure of a company.[113] In these circumstances I have concluded that the applicant had a leading role in the company that she has not disclosed to the Tribunal. The fact that she had received a significant sentence of six months’ imprisonment points to her having a significant involvement. While that sentence was set aside on appeal, the applicant still had to pay a substantial fine. The claim of the applicant that she was exonerated by the court[114] has no basis having regard to the finding of the Court of Appeal of her “criminality” and the substantial fine. It is understandable why the Iranian authorities would have focused their prosecution efforts on those persons who were the main officials of the company.
[112] Exhibit A, T-documents, T5, p 140.
[113] Exhibit A, T-documents, T21, 363.
[114] Exhibit A, T-documents, T21, 369.
The claim that only two people were charged with the offences[115] is certainly not accurate because there are three accused plaintiffs referred to in the judgment of the Court of Appeal.[116] I have concluded that the applicant has made a false statutory declaration in claiming that “[o]nly two persons”[117] were charged for involvement in the pyramidic company. The person who is the lead appeal plaintiff has the first name of “Hasameddin”. There is no evidence that the lead appeal plaintiff was of the Baha’i faith. I have unfortunately come to the conclusion that the claim of the applicant that it was only her and another fellow Baha’i member who were prosecuted was designed to make plausible her claim that she was prosecuted because of her claimed Baha’i faith. Although there is reference in the newspaper article that is relied upon by the applicant to the Baha’i faith of the two persons arrested,[118] there is no evidence before the Tribunal as to the providence of this newspaper article. The original newspaper article was not produced.
[115] Exhibit A, T-documents, T20, p 350, [13].
[116] Exhibit A, T-documents, T5, pp 149-153.
[117] Exhibit A, T-documents, T20, p 350, [13].
[118] Exhibit A, T-documents, T5, p 140.
I do not accept the claim of the applicant that was made in her application for a protection visa that she fears persecution in Iran. The claim of the applicant that she feared persecution in Iran is not credible having regard to the fact that the applicant was able to travel freely to several countries without hindrance. The applicant was able to freely travel from Iran to several countries in Europe as well as travel to Australia, Indonesia, Malaysia, Singapore and Dubai. The applicant states that her trip to Europe was purely for recreation. Her failure to seek asylum in Europe or Malaysia is an indication that she did not fear persecution in Iran. The applicant has stated that during the court case she was free to leave Iran. This is inconsistent with her claim that she had a fear of persecution from the Iranian authorities who allowed her to leave the country.
The evidence that is put forward by the applicant as to when the Iranian authorities first discovered her Baha’i faith is certainly contradictory. There is some basis in the submission of the respondent that the applicant in her application for a protection visa has stated that the Iranian authorities found out that she was of the Baha’i faith when her home was raided on 23 October 2010. The applicant claims that on that occasion Baha’i photographs, books and other material which were found in her home were taken by the authorities.[119]
[119] Exhibit A, T-documents, T5, pp 132-133.
In her application for a protection visa the applicant made the following statement:
My faith in Baha’i religion emerged when two male and a female agents of the Information Ministry raided our home on 02. Aban.1389 (23 October 2010) without presenting us with a legally issued search warrant.[120]
The above passage was interpreted for the applicant who was quite fairly asked by the respondent whether, when she said that her faith in the Baha’i religion emerged in 23 October 2010, she didn’t really mean that then, or she meant something else. The applicant answered: “No, no, yes, you’re correct. I mean that - I mean that, at that day, that they raid to my house, they found that I’m Baha’i also and they saw the photos and they took all of those things also.”[121]
[120] Exhibit A, T-documents, T5, p 132.
[121] Transcript, p 69, lines 39-41.
It was put to the applicant that the officers of the Information Ministry who came to her house had already known that she was Baha’i, and that the Iranian authorities knew that she was Baha’i since 1995. It was fair for the respondent to put this question to the applicant to test whether this was the case of the applicant. The applicant answered: “But the government knew that I am Baha’i from 1990, and … they asked me to go for summon and questioning and all of those things.”[122] Even though the applicant has asserted that she converted to the Baha’i faith in 1993, I draw no adverse conclusions from her reference to 1990 having regard to calendar conversion difficulties.
[122] Transcript, p 70, lines 16-18.
The respondent has pointed out that the applicant has provided information that the Iranian authorities would have certainly been aware that the applicant was of the Baha’i faith much earlier than in 2010. The applicant in giving evidence has asserted that she converted to the Baha’i faith in 1993. The applicant has referred to a news article that suggests that Rohullah Rowhani was executed in 1997 for converting persons from Islam to Baha’i. The applicant is not referred to in this news article.[123] I do not accept that the applicant was converted by Rohullah Rowhani on this occasion. There is no cogent evidence before the Tribunal that the applicant had suffered from her alleged conversion.
[123] Exhibit A, T-documents, T5, p 144.
In the submissions of the applicant it is stated that the applicant’s father is a retired army personnel and that (since the Islamic Revolution of 1979) in any passport or other formal application, the whole family (parents and sisters) have always declared their faith as Muslim.[124] This leaves the claim of the applicant that she was a victim of secretive prosecution to have no basis. Indeed, the response of the applicant was that the Supreme Leader issued a fatwa which banned people from communicating with Baha’i.[125] This is inconsistent with any claim of the applicant of secretive prosecution.
[124] Exhibit D, Submissions of the Applicant, 16 June 2020, [6].
[125] Exhibit A, T-documents, T5, p 62.
The submissions of the applicant that she has always declared herself as Muslim, is inconsistent with her claim made in her application for a protection visa that the authorities knew of her faith. In her statutory declaration dated 30 April 2015 which the applicant lodged in support of her claim for a protection visa, the applicant declared that in Iran her family had always declared their faith as members of the Baha’i religion.[126]
[126] Exhibit A, T-documents, T5, p 132 [20].
The applicant has claimed that her daughter, who was born in 1994, was not permitted to attend “good primary, secondary and high schools” because of her faith.[127] The submissions of the applicant that her whole family has always declared herself as Muslim is also inconsistent with the claim in her application for a protection visa that:
We have always faithfully, albeit perilously, declared our faith as followers of the Baha'i religion regardless of what the circumstances. Our religion does not permit us to deny our faith if asked by any person even if we know the disclosure our faith will lead to being harmed or persecuted.[128]
This claim was also repeated in the statutory declaration that the applicant made on 24 October 2019.[129] These inconsistencies of the claims made by the applicant leads me to conclude that she is not a credible person.
[127] Exhibit A, T-documents, T5, p 78.
[128] Exhibit A, T-documents, T5, p 131, [21].
[129] Exhibit A, T-documents, T14, p 257, [28].
The respondent has submitted that the applicant has given contradictory claims to the Department as to why in 2012 she had left Iran to go to Malaysia. In 2013, in her application for a visitor visa, she stated that she went to Malaysia for the education of her children.[130] However, in 2014 when she made her application for a protection visa, the applicant stated that she had left Iran due to religious persecution and discrimination. In her statutory declaration that she made in 2020 she declared “It is true that we finally decided to leave Iran because of MY fear of religious persecution”.[131] I do not accept the submission of the respondent that one of the reasons that the applicant provided for leaving Iran is itself false because the applicant may have had multiple reasons for leaving Iran.
[130] Exhibit A, T-documents, T4, p 14.
[131] Exhibit A, T-documents, T20, p 350, [17].
I have considered the claim of the applicant that she feared harm in Malaysia because of information that she received on 20 November 2014. The applicant claimed that she had learned that Iranian spies had been sent to infiltrate Baha’i gatherings in Malaysia. However, that was not until 15 December 2014 when the applicant departed from Malaysia. It is certainly not in my view explicable that the applicant delayed her departure for that period because she had to sell the cars, arrange the termination of the lease, and dispose of furniture and household effects. The applicant claimed that she could not leave the country before finalising paperwork. The applicant had close friends in Kuala Lumper. It is not evident why they could not have assisted the applicant in finalising her arrangements. In my view it is not plausible that she stayed for nearly a month in Malaysia when she asserts that she had a fear of her children being kidnapped and that kidnapping children in Kuala Lumper had become a common phenomenon. The applicant did not take any action, for instance, to promptly send her children overseas where they would be safe.
After the applicant left Malaysia in 2014 she returned with her family to Malaysia in 2017. There is some validity to the submission of the respondent that it is unclear why the applicant felt confident in her knowledge that the people who threatened danger to her and her family would not know of her presence in Malaysia in circumstances where her aggressors were said to be Iranian spies who were presumably skilled in identifying their targets.
I do not consider that the applicant had ever faced any danger in Malaysia. Some 16 months after the applicant was granted a protection visa, she and her family returned to Malaysia for a two-week holiday in July 2017. I do not accept her assertion that she only felt safe enough to return because she thought “Australia” would protect her if she faced any danger in Malaysia, although how this would be the case was not explained.
In her claim for a protection visa the applicant asserted: “After learning about the Iranian government’s espionage activities in Malaysia, we did not feel safe there anymore”. In her statutory declaration dated 30 April 2015 the applicant declared: “Alarmed and fearful of being reported and be told to return to Iran by the Iranian embassy, we decided to leave Malaysia for Australia with the intention of never returning to Malaysia or Iran.”[132] I do not accept that this assertion is true because the applicant and her family did return to Malaysia after she received a protection visa. Because of that return I have concluded that she was never worried about spies in Iran or the kidnapping of her children.
[132] Exhibit A, T-documents, T5, p 138, [73].
In support of her application for a protection visa the applicant submitted a letter dated 23 March 2015 from the Acting Secretary of the Baha’i Spiritual Assembly of Malaysia who confirmed that there was a perceived security threat to the safety of the family of the applicant which had been reported to the police. The Acting Secretary stated that she was “not at liberty to disclose the nature of the security issues at this point”.[133] There has been no update from Malaysia as to what the Acting Secretary regarded as the perceived security threat to the applicant. I do not place great weight on the letter because it does not contain any cogent reasons why there was a perceived security threat. In any event, because she returned to Malaysia I have concluded that the applicant and her family did not face any danger in Malaysia.
[133] Exhibit A, T-documents, T14, p 233.
After the applicant lodged her application for a protection visa, she engaged the services of her migration agent to prepare a detailed statutory declaration in support of her claims for a protection visa. In this statutory declaration the applicant mentioned that she was arrested and detained for 21 days in solitary confinement after her family home was raided by the authorities in October 2010.[134] The applicant claims that the agents conducting the search did not produce any official search warrant upon the “unannounced house raid”.[135] However, a newspaper article that is relied upon by the applicant mentions that the two main officials of the Oriflame company were arrested “under legal judgement”.[136] This leads me to conclude that, because the applicant was arrested under a “legal judgement”, her arrest was regular. I do not accept her claim that she was arrested “without any authority”. As the applicant claims that the agents were unaware of her Baha’i faith until the actual raid, her claim that she was arrested because of her faith is simply not plausible.
[134] Exhibit A, T-documents, T5, p 134, [44].
[135] Exhibit A, T-documents, T5, p 134, [45].
[136] Exhibit A, T-documents, T5, p 140.
In giving evidence before the Tribunal the applicant made a significant claim that she had not been previously made in her application for a protection visa and detailed statutory declaration in support of her claims. The applicant in giving evidence claimed that, after she was arrested, she was questioned in relation to religion. There is no evidence that the applicant had made such a claim before the hearing of her application.

It was put to the applicant by the respondent that the evidence that she had been questioned about being Baha’i, rather than about being involved with Oriflame, would have been very important to convincing the protection visa decision maker that she had been persecuted against because she was Baha’i; the applicant agreed with this proposition.[137]
[137] Transcript, p 65, lines 23-28.
It was also put to the applicant by the respondent that her claim about being questioned about being Baha’i while she was detained was a recent invention. The applicant remarked:
I never made this up. I never had such intentions. When I was completing these forms, I was obviously stressed and quite anxious and just like other sections that are on the form that I have - I may have made some mistakes, perhaps I have not noted down this either.
I do not accept her explanation because the detailed statutory declaration of some 87 paragraphs do not contain any reference to the applicant being questioned about her religion. In paragraph 1 of the statutory declaration the applicant declared: “I provide some additional information regarding the reasons for my fear of religious persecution in my home country of Islamic Republic of Iran”. The whole purpose of the applicant in declaring the statutory declaration was to outline her fear of religious persecution. When she engaged the services of an experienced migration agent in completing this detailed statutory declaration, I would infer that the agent would have asked the applicant to outline the basis of her fear of religious persecution. I have concluded that the applicant’s new claim of being questioned about her religious beliefs is false and was intended to bolster her claims to have a fear of religious persecution.
On 30 December 2014, the husband of the applicant made an application for a protection visa. While her husband did not raise any protection claims in his application that he had lodged, the applicant made claims concerning her husband in her statutory declaration dated 30 April 2015. She declared that her Baha’i gatherings in Malaysia had been infiltrated by Iranian spies and that she was informed that her husband’s phone was being tapped. The applicant also declared: “Alarmed and fearful of being reported and be told to return to Iran by the Iranian embassy, we decided to leave Malaysia for Australia with the intention of never returning to Malaysia or Iran”. On 20 October 2015 the husband departed from Australia to go to Iran. The fact that the husband voluntarily returned to Iran leads me to conclude that he did not have any fear of persecution on his return and that the claims of the applicant have no foundation. Her husband has a partner visa and has returned to Iran on a number of occasions since he was granted a partner visa. He has management positions for a number of businesses in Iran. While in Malaysia her husband worked for 8 Iranian companies. Her husband has been free to return to Iran on a number of occasions as well as send money overseas. It is implausible that the applicant, as she has claimed, could not return to Iran because of her fear of persecution and yet her husband does not show any fear by returning to Iran on a number of occasions. The applicant did not call her husband to give evidence before the Tribunal.
In support of her application for a visitor visa, the applicant gave to the Department a copy of the title deed to a property in Iran which belonged to her. The applicant stated that she provided the title deed with her application to show that she had an incentive to return to Iran. Her application for a visitor visa was completed on 19 November 2013, which was shortly after the Iranian Court of Appeal gave its judgement affirming the conviction against her for her involvement in the Oriflame Company. The applicant providing the title deed to her property as evidence that she had an incentive to return to Iran is inconsistent with her assertion that she feared persecution in Iran. Either she did not fear persecution in Iran, or she mislead the Department by purporting to have an intention to return to Iran.
Ms Cathcart, psychologist, was questioned about the treatment records of the applicant which she stated were “not long”. Ms Cathcart confirmed that there is no reference in those notes to a court case in Iran or spies in Malaysia. I rely upon that evidence to also conclude that the applicant did not fear any persecution in Iran or Malaysia as claimed in her application for a protection visa.
Misleading information in visitor visa application
One matter that I have considered was the claim made by the applicant in her application for a visitor visa that it was her intention to remain in Australia for a short stay of less than three months.[138] The applicant was very specific in the places that she wanted to visit.[139] The respondent has pointed out that once granted the visitor visa, the applicant then made four visits to four different parts of Australia.[140] The respondent has submitted that the applicant’s behaviour, when seen in light of her visits to Europe[141] suggests that she was visiting each location with a view to determining where she would ultimately seek a permanent visa. I consider that there is some basis to this submission of the respondent which is confirmed by the evidence of one of her character witnesses. Ms Medvecka, who was in the possession of the respondent’s statement of facts and contentions, was aware that one concern of the respondent was that the applicant made a false statement in her visitor visa that it was her intention to remain in Australia for a short stay of less than three months. Ms Medvecka, who is a friend of the applicant, certainly did not indicate that the applicant intended to have a short stay; she gave evidence from which I have inferred that the applicant intended to settle in Australia. She remarked: “If I personally if I go to a new country, you know, and that I am going to settle there I just organise myself to settle and then later I will have the opportunity to visit the country.”[142]
[138] Exhibit A, T-documents, T4, p 13.
[139] Exhibit A, T-documents, T4, p 16 (question 29).
[140] Exhibit A, T-documents, T5, pp 56, 112, 116; T23, pp 377-378.
[141] Exhibit A, T-documents, T5, p 55.
[142] Transcript, p 44, lines 44-46.
CONCLUSION
I have concluded that the applicant is not eligible for Australian citizenship having regard to the fact that the applicant is not of good character at the time of this decision. I have come to this conclusion having regard to the lack of remorse shown by the applicant when she gave evidence concerning her failure to disclose her criminal history. I have also concluded that that the applicant was not of good character at the time of the decision of the delegate who found that the applicant was not honest in her response to the Department. The delegate was in my view correct in concluding that the claim of the applicant that she had been exonerated by the court was false.
I have also concluded that the family of the applicant did not fear any persecution in Iran or Malaysia as claimed in her application for a protection visa. I regard it as significant that her husband returned to Iran after a protection visa was lodged on his behalf. I also note that her son was willing to return to Iran.
The applicant did not disclose the military services of her husband in her application for a visitor visa. I accept that the actual form may have only required the applicant to disclose her own military service. Her husband, in a subsequent application, did disclose his military service, including that he worked with explosives. I would recommend that consideration be given to the modification of the form of application for a visitor visa so that there is disclosure of the military service of all persons who intend to travel under the visitor visa.
DECISION
I affirm the decision of the delegate dated 26 March 2020.

I certify that the preceding one-hundred and thirty-one (131) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

........................................................................
Associate
Dated: 26 October 2021

Date of hearing: 15 December 2020

Date final submissions received: 23 February 2021

Advocate for the Applicant: Farnam Immigration Services

Solicitors for the Respondent: Sparke Helmore

Date of hearing:	15 December 2020
Date final submissions received:	23 February 2021
Advocate for the Applicant:	Farnam Immigration Services
Solicitors for the Respondent:	Sparke Helmore