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

[2022] AATA 675

Jalil and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 675 (11 March 2022)

Division:GENERAL DIVISION

File Number:          2020/8214

Re:Abdul Jalil

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member C. J. Furnell

Date:11 March 2022

Place:Melbourne

The Tribunal affirms the decision the subject of review.

...........[SGD].............................................................

Senior Member C. J. Furnell

Catchwords

CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – Australian Citizenship Act 2007 (Cth) – whether the Tribunal can be satisfied that applicant is of good character – application of Citizenship Procedural Instruction 15 – provision of false personal information in visa and citizenship applications – Tribunal not satisfied Applicant is of good character – decision affirmed

Legislation

Administrative Appeals Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Australian Citizenship Bill 2005 (Cth)

Cases

Al Khalaf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1716

Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65

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

Chalou and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1514

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

Elias v Commissioner of Taxation (2002) 123 FCR 499

Fang and Minister for Immigration & Border Protection [2018] AATA 3686

Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250

Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128

Hasan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2457

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

Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27

Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641

MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2576

Minister for Immigration and Border Protection v Makasa [2021] HCA 1

Mohamad v Minister for immigration & Border Protection [2018] AATA 687

Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082

Ramazani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1801

Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729

Shah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2121

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255

VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230

Zheng v Minister for Immigration and Citizenship [2011] AATA 304

Secondary Materials

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

Collins Dictionary (online, 2021)

Department of Foreign Affairs and Trade, DFAT Country Information Report: Afghanistan (27 June 2019)

Department of Home Affairs, Citizenship Procedural Instruction 15 – Assessing Character under the Citizenship Act

Department of Home Affairs, Revised Citizenship Procedural Instruction 16 – Assessing Identity Under the Citizenship Act

Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)

Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)

Macquarie Dictionary (online, 2021)

Oxford English Dictionary (online, 2021)

REASONS FOR DECISION

Senior Member C. J. Furnell

11 March 2022

1. The applicant applied for Australian citizenship by conferral in May 2015.[1]

   [1] T8, pp.111-22, with “T” being a reference to documents provided by the Respondent under s 37 of the Tribunal’s constituent legislation (Administrative Appeals Act 1975).

2. Under the Australian Citizenship Act 2007 (the Act) (s 24(1)), when a person makes such an application, the respondent becomes obliged to approve or to refuse to approve the application. That decision must, however, be to refuse to approve in certain circumstances.

3. For instance, the decision must be to refuse to approve an application for citizenship unless:

   (a)the respondent is satisfied of the identity of the applicant (s 24(3)); and

   (b)the applicant is eligible to become an Australian citizen under any of certain provisions of the Act (s 24(1A)). Of those provisions, the only one of potential relevance in this case[2] renders eligibility for citizenship conditional on the respondent being satisfied that the applicant is of good character at the time of the decision (s 21(2)(h)).

   [2] Seven eligibility provisions are identified in s 24(1A) of the Act. Most require the respondent’s satisfaction as to the good character of the relevant applicant. The others might apply where the applicant is aged under 18, born in Papua or was born in Australia. One applies where the applicant has a permanent or enduring physical or mental incapacity: s21(3). 

4. On 3 December 2020, a delegate of the respondent decided to refuse to approve the applicant becoming an Australian citizen. The delegate was not satisfied of the applicant’s identity or that the applicant was then of good character.[3]

   [3] T2, pp.13-30.

5. On 11 December 2020, the applicant applied to the Tribunal for review of that decision.[4]

   [4] T1, pp.6-12.

6. In conducting that review, the Tribunal stands in the shoes of the respondent in order to “do over again” that which was done by the respondent’s delegate.[5] 

   [5] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].

7. Standing in those shoes in this proceeding, the Tribunal needs to decide whether it is satisfied of the applicant’s identity and that he is now of good character.

8. I am satisfied as to the applicant’s identity but not satisfied that the applicant is now of good character.

   MATERIAL BEFORE ME

9. In arriving at that state of satisfaction and non-satisfaction, respectively, I have had regard to the submissions made at and before, and evidence adduced at, the hearing,[6] and to certain documentary material lodged with the Tribunal prior to the hearing.

   [6] In terms of submissions made before the hearing, reference is made to the respondent’s Statement of Facts, Issues and Contentions of 21 July 2021 (R SFIC), to the applicant’s Statement of Facts, Issues and Contentions of 9 June 2021 (A SFIC) and to submissions on behalf of the applicant of 3 February 2021.

10. At the hearing the Tribunal had the benefit of hearing from the applicant, his wife, Ms Ahmad, and brother-in-law, Mr Wali Ahmad, and from Mr Aslam Reza, said to be a community leader. 

11. As for documentary material lodged with the Tribunal, it included copies of:

    (a)a volume of documents provided by the respondent under s 37 of the Tribunal’s constituent legislation (being the “T” documents);

    (b)a statutory declaration of the applicant of 18 February 2021;

    (c)     a statement of the applicant of 9 June 2021;

    (d)     a statement of Ms Ahmad of 9 June 2021;

    (e)     a statement of Wali Ahmad of 7 June 2021;

    (f)      a statement of Aslam Reza of 8 June 2021;

    (g)     a translation of a propinquity certificate of 28 November 2020 issued by the Islamic Republic of Afghanistan and said to identify all family members of the applicant;

    (h)     an Australian Government Department of Defence – HMAS Cerberus identification card held by the applicant;

    (i)       a Victorian Heavy Vehicle Driver license issued in relation to the applicant;

    (j)       a Working with Children Check card issued by the Victorian Government in relation to the applicant;

    (k)      birth certificates for each of the applicant’s Australian citizen children naming the applicant as father;

    (l)       a Medicare Card for the applicant;

    (m)     Notices of Tax Assessment from the Australian Taxation Office issued in relation to the applicant;

    (n)     a referral letter of 17 November 2020 from Dr Soares in relation to Farid Jalali;

    (o)     Zahra Alizadeh’s tazkera and a certified translation of 2 June 2021 of that tazkera;[7]

    (p)     Najila Jalali’s tazkera and a certified translation of 2 June 2021 of that tazkera; and

    (q)     New Sakhi Clinic notes of 4 June 2020 and notes of Prof. Dr. Khan of 28 June 2018.

    [7] The primary form of identification for Afghan citizens is and was the tazkera (sometimes spelled taskira), a document required for employment and admission to schools and universities, to obtain approval to run a business and to buy, rent and sell property: Department of Foreign Affairs and Trade, DFAT Country Information Report: Afghanistan (27 June 2019) [5.46].

    ASPECTS OF FACTUAL CONTEXT

12. The applicant submits that:

    (a)he was born in Jaghori, Ghazni, Afghanistan on 10 August 1985[8] and lived in the Moqur district of Afghanistan before moving to Quetta in Pakistan in early 2000.

    (b)he returned to Afghanistan for a short period in 2004 to obtain his tazkera.

    (c)     in around 2005, he left Pakistan for the United Arab Emirates to obtain work selling vehicle parts.

    (d)     he remained in the United Arab Emirates until 2010, albeit that he periodically returned to Quetta.

    (e)     on one of those return visits to Quetta in 2009, the applicant celebrated his engagement to Ms Ahmad; and

    (f)      in 2010 and 2011, he returned to Afghanistan on several occasions to work in a relative’s engineering company.

    [8] T13, p.157; Statement of applicant of 9 June 2021.

13. On 2 May 2011 the applicant was granted a Prospective Marriage (subclass 300) visa.

14. On 8 May 2011 he arrived in Australia.[9]

    [9] T8, p.113; T13, p.157.

15. In July 2011, the applicant applied for a permanent partner (subclass 801) visa, and married his partner, Ms Ahmad.

16. On 7 November 2011, he was granted a temporary partner (subclass 820) visa; while on 2 October 2013 he was granted a permanent partner (subclass 801) visa. He currently holds the latter visa.

17. On 21 November 2012, the applicant completed and lodged with the respondent an “agreement to undertake care of an unaccompanied humanitarian minor” (a form 1258) in relation to Farid Jalali.

18. The applicant and Ms Ahmad have two children, one born in April 2013 and the other in September 2019.

19. On 9 May 2015, the applicant applied for Australian citizenship by conferral.[10] Accompanying the application was a copy of an English translation of the applicant’s passport issued by the Islamic Republic of Afghanistan in June 2007[11] (specifying “Jalil” as his surname), a certified copy of a translation of the applicant’s tazkera issued by the Islamic Republic of Afghanistan in July 2004[12] (again, specifying “Jalil” as his surname), a Victorian driver licence,[13] a pensioner concession card,[14] a marriage certificate[15] and a gas bill.[16]

    [10] T8, p.122; T15, p.179.

    [11] T8, p.124; T14, p.174.

    [12] T8, pp.131-3.

    [13] T8, p.128.

    [14] T8, p.128.

    [15] T8, p.126.

    [16] T8, p.130.

20. Subsequently, the applicant provided:

    (a)a certified copy of a replacement passport issued by the Islamic Republic of Afghanistan;[17]

    (b)a certified copy of his tazkera;[18]

    (c)     a propinquity certificate of 28 November 2020 issued by the Islamic Republic of Afghanistan identifying family members of the applicant, and a translation of the certificate;

    (d)     a copy of Zahra Alizadeh’s tazkera and a certified translation of 2 June 2021 of that tazkera;

    (e)     a copy of Najila Jalali’s tazkera and a certified translation of 2 June 2021 of that tazkera;

    (f)      various documents issued to the applicant by Victorian and Commonwealth authorities, such as a heavy vehicle driver licence, birth certificates for his two children (naming the applicant as father), a Medicare card, and Australian Taxation Office assessments; and

    (g)     additional identity documentation including a copy of the original passport issued in June 2007,[19] a United Arab Emirates identity card[20] and a certified translation of his father’s tazkera issued in March 1974.[21]

    [17] T14, pp.172-3.

    [18] T17, p.228.

    [19] T17, pp.203-27.

    [20] T17 p.231.

    [21] T17, p.240.

    REGULATORY AND POLICY CONTEXT

21. In considering the concepts of “good character” and that of “identity”, while not bound to do so,[22] I propose to take into account and apply government policy where it is relevant and in the absence of cogent reasons to the contrary.[23]

    [22] Elias v Commissioner of Taxation (2002) 123 FCR 499 at 506–7 per Hely J. See also Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641 at [34]-[42].

    [23] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645] per Brennan J; Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65 at [25].

22. In this regard, reference is made to the Australian Citizenship [policy statement] reissued on 27 November 2020. The statement provides context for citizenship procedural instructions to be used in making decisions under the Act, instructions outlined in what are characterised in the statement as related framework documents.[24]

    [24] Policy statement [2.1].

23. Instructions to be so used when assessing a citizenship applicant’s character are provided for in Citizenship Procedural Instruction 15 – Assessing Character under the Citizenship Act (CPI 15), while Citizenship Procedural Instruction 16 outlines instructions for use in assessing matters to do with identity (CPI 16).

24. In accordance with CPI 15[25] and consistent with case law,[26] a person’s character is something to be assessed objectively by reference to the person’s enduring moral qualities. It is not determined by the person’s reputation.

    [25] CPI 15 [3.1], [3.3].

    [26] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432; BOY19 v Minister for Immigration & Border Protection [2019] FCA 574 at [51].

25. In the Act, the term “good character” is “…used in a broad way and allows the decision-maker to consider a range of events and conduct connected with the applicant.”[27] Hence, and as a holistic assessment, various aspects of a person’s life are of potential relevance,[28]  including family life, employment, payment of taxes and contributions to the community, and may need to be considered.[29]

    [27] VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 at [32], citing Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128 at [60].

    [28] CPI 15 [3.3].

    [29] CPI 15 [4].

26. A consideration of those things might occur in the context of determining whether the person concerned has behaved in an ethical manner[30] and has been legally observant.[31] In this regard, in CPI 15,[32] it is said that, as a general proposition, a person of good character would not:

    “…practise deception or fraud in dealings with the Australian Government, or other organisations, [by] for example: intentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications…”.[33]

    [30] CPI 15 [3.3]; Hasan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2457 at [17].

    [31] As cited in CPI 15, Zheng v Minister for Immigration and Citizenship [2011] AATA 304: “In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant.”

    [32] CPI 15 [4].

    [33] Adopted in Hasan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2457 at [18].

27. As already mentioned, an application for citizenship must be refused absent satisfaction as to the applicant’s identity. Hence (and as stated in the Explanatory Memorandum to the Australian Citizenship Bill 2005), where an applicant’s identity is unclear, his or her application must be refused.

28. As with the “good character” concept, the identity concept is left undefined by the Act. Its ordinary, grammatical, meaning, however, extends to the “condition, character, or distinguishing features of a person,”[34] the individual characteristics of a person by which the person is recognised,[35] or the set of characteristics of a person which distinguishes the person from others.[36] 

    [34] Macquarie Dictionary (online, 2021). Found at: Collins Dictionary (online, 2021). Found at

    [36] Oxford English Dictionary (online, 2021). Found at:

29. The meanings so given to the concept of “identity” are reflected in and elaborated on in CPI 16.  It is said not to be a point in time concept but, rather, one that needs to be considered historically and verified incrementally throughout a person’s life. Consistently with the dictionary definitions mentioned earlier, in guidelines referred to in CPI 16 (and with which CPI 16 is said to align)[37] (with my emphasis) it is said that a “…person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.”[38]

    [37] National Identity Proofing Guidelines 2014 (“Guidelines”). See CPI 16 [2.1].

    [38] Guidelines [2.1.1].

30. Paraphrasing what has been just said, a person’s identity comprises a set of his or her characteristics or attributes over time, characteristics that enable the person to be distinguished from others.

31. CPI 16 offers guidance as to how a decision-maker might come to be satisfied of a person’s identity. Regard ought to be had to information provided or obtained in relation to what are characterised as the three pillars of identity.

32. Those three pillars of identity[39] are:

    (a)Biometrics. These are expressed to involve personal identifiers, which include fingerprints, facial images, or a person’s signature.[40]

    (b)Documents. The relevance of documents is said in CPI 16 to derive from the fact that they may contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information. While documents are said not to establish identity of themselves, they contribute to a person’s identity timeline by providing an anchor to corroborate pillar one (biometrics) and pillar three (life story) information. It is said that, when assessing pillar two, decision-makers should consider and assess whether the documents and information they contain are consistent and whether they support or refute a person’s claimed identity. The crucial element of a document, whether genuine or not, is the story the document tells.[41]

    (c)Life story. This “pillar” is described as a narrative of the events that happened to the relevant person from birth.[42] A person’s life story may include details of (amongst other things) family composition, education, employment, countries of residence, countries visited, social footprint and online presence.[43]

    [39] CPI 16 [4.4].

    [40] CPI 16 [4.13]. It is said that the term biometrics refers to the recorded measurement of a person’s unique, physical, identifiable attributes used for identification and authentication and to anchor an individual to a claimed identity. It is a concept similar to that of “personal identifier”, as defined in s 10 of the Act.

    [41] CPI 16 [4.14].

    [42] CPI 16 [4.15].

    [43] CPI 16 [4.4].

1. In having regard to information provided or obtained in relation to these three pillars, the objective is to determine whether the information is consistent.[44] In this regard:

   “[t]he three pillars of identity require an applicant to demonstrate that personal identifiers, personal information and life story are consistent and uniquely attributable to the applicant… In that context, to be satisfied of an individual’s identity is to be satisfied that the individual’s characteristics and life story are internally consistent and uniquely applicable to the individual at all times and in all circumstances.”[45]

   [44] CPI 16 [4.12].

   [45] MDQK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2576 at [75].

   INCONSISTENCIES IN INFORMATION PROVIDED

2. Subject to a non-contentious issue concerning his date of birth,[46] an issue concerning the year in which the applicant and his family moved from Afghanistan to Pakistan,[47] and to a rather large qualification I will soon get to, information and material provided or obtained in relation to the three pillars of identity in this case have generally been consistent (and I note that the respondent does not contend otherwise).[48]

   [46] See T10, pp.145-8. In some material provided, the applicant’s date of birth is specified as 1 January 1985, while in other material it is said to be 10 August 1985. Specification of a birth date as 1 January was explained as a general practice where the precise date was unknown.

   [47] T19, p.250, where it is suggested that the applicant has contended that the move occurred in 1998, 2000 and 2001.

   [48] Two further apparent inconsistences are mentioned in [74]. The applicant has not had an opportunity to address them and they were not raised at the hearing of this proceeding.

3. As for the year in which the move to Pakistan occurred, I note that the applicant now believes that the move to Pakistan occurred in early 2000 for reasons outlined in a statutory declaration made by him in June 2020.[49] Those reasons are reasonable and logically probative of the conclusion arrived at. The inconsistency in the material provided by the applicant concerning the year of that move is explicable given the applicant’s young age at the time (being around 14), and what I infer was then his tumultuous existence, leaving war-torn Afghanistan to live as a refugee in Pakistan. In circumstances such as these, rather than raising doubts as to credibility generally or as to identity specifically, relatively insignificant inconsistencies in the material provided are to be expected.

   [49] T25, p.298.

4. The large qualification as to the consistency of identity information provided or obtained concerns details provided by the applicant of his family composition.

5. The applicant now says[50] he has five siblings being:

   (a)Ms Zahra Alizadeh, an Afghan citizen born in July 1979, living in Austria;

   (b)Ms Najila Jalali, an Afghan citizen born in August 1984, living in Iran;

   (c)Mr Abdul Bashir Jalali, a Norwegian citizen born in July 1992, living in Norway after having been “removed from Australia after some trouble with the police”;[51] 

   (d)Mr Farid Jalali, an Afghan citizen born in December 1995, living in Australia;[52] and

   (e)Ms Nasima Jalali, an Afghan citizen born in December 1999, living in Pakistan.[53]

   [50] T25, pp.299-300 (statutory declaration of 11 June 2020).

   [51] Submission of 3 February 2021; statutory declaration of 18 February 2021.

   [52] T23, p.284; T25, p 302.

   [53] List of relatives completed by the applicant in February 2020: T23, p.284. The list is reflected in a statutory declaration made by the applicant in June 2020: see T25, p.298.

6. The Prospective Marriage (subclass 300) visa granted to the applicant in early May 2011 was applied for by him prior to his arrival in Australia. In the application documentation, the applicant stated that he had no siblings.[54]

   [54] The documentation concerning the applicant’s visa applications is not before the Tribunal. Nevertheless, each of the applicant and respondent accepts that, in relation to each application, the documentation called for disclosure of details of the applicant’s siblings and that the applicant stated that he had no siblings.

7. That documentation was completed in Australia by Mr Wali Ahmad, the brother of Ms Ahmad (the applicant’s wife and then fiancée), relying on information provided by Ms Ahmad. Ms Ahmad did not tell Mr Ahmad about the applicant’s siblings and did not realise information concerning those siblings was of importance. Both the applicant and Mr Ahmad gave evidence to the effect that they did not speak about the documentation before its lodgement. Mr Ahmad sent the documentation to the applicant who was then in the United Arab Emirates. The applicant signed the documentation and then lodged it with the Australian consulate. He suggests that when he did so, he did not understand what he had signed as his “…English literacy was limited.”[55]

   [55] T25, p.299 (statutory declaration of 11 June 2020).

8. The applicant is responsible for the accuracy and completeness of that documentation. He elected to sign and lodge it in the knowledge that he did not fully comprehend what was said in it, or uncaring as to its accuracy. In these circumstances, limited English literacy does not serve to relieve the applicant of his responsibility with respect to the documentation.

9. I find, however, that the applicant’s false statement in his first visa application that he had no siblings was innocent in the sense of not being deliberate, designed to obtain some benefit or to mitigate risk (or to assist him in obtaining a benefit or mitigating a risk) for or to himself or another. It is not suggested that the applicant’s chances of success in relation to his initial visa application would have been adversely affected by disclosure of information concerning his siblings. Nor is there any material before me suggestive of the applicant having perceived that they would have been.

10. The documentation lodged by the applicant in respect of his two subsequent visas in July 2011 (the temporary partner visa granted in November 2011 and the permanent partner visa granted in October 2013) also, apparently, repeated the applicant’s initial, inaccurate, statement to the effect that he had no siblings.[56] This repetition was deliberate. The evidence before me is that the applicant was then aware of the inaccuracy but chose to continue with it, apparently because he did not consider information about his siblings to be material to his applications and because he wanted to ensure that information he provided was consistent with information he had previously provided. That latter motivation deprives his conduct of the innocence with which I characterised his earlier conduct when applying for the prospective visa. In repeating the erroneous statement concerning siblings, the applicant was deliberately seeking to mitigate risk to the success of his partner visa applications, risk that he perceived would arise were it to be discovered that information he had initially provided was inaccurate.

    [56] T2, p.19; T19, p.249; T25, p.299.

11. On behalf of the applicant, it was submitted that he had painted himself into a corner by reason of the initial inaccurate statement concerning siblings. Insofar as this is intended to suggest that the applicant had little choice but to continue with the charade concerning his family, I disagree. As I see it, the honourable or moral thing to have done in the circumstances was for the applicant to have disclosed the initial inaccuracy, hoping that his assessment that information concerning his siblings was not material was one shared by the authorities. I do appreciate, however, that a choice to disclose would not have been an easy one in the circumstances. Any threat to the applicant’s right to remain in Australia would then have been viewed seriously, especially as shortly after his arrival in Australia, he had married his fiancée, an Australian resident (the wedding taking place in July 2011). However, as things transpired, the applicant seems to have found himself in a hole and he kept on digging.

12. In the form 1258 “agreement to undertake care of an unaccompanied humanitarian minor” lodged by the applicant in November 2012, he stated that the minor in question, Farid Jalali, had lived close to the applicant’s family in Pakistan and that Farid’s mother had asked the applicant if Farid could come and live with the applicant.[57] In fact, Farid is the applicant’s brother. In oral evidence, the applicant stated that he did not read the form before signing it, and that it had been completed by a departmental officer. I reject any inference, however, that the applicant did not deliberately mislead the authorities when he signed the documentation. He knew that the documentation did not disclose his true relationship with Farid as Farid had told him that it did not. It was clear from the applicant’s oral evidence that this non-disclosure was deliberate. According to the applicant, he did not disclose that Farid was his brother as he was a minor who needed help after an arduous trip to Australia and it might be bad for Farid if their relationship was disclosed. He did it to “protect Farid”.[58] On behalf of the applicant, it is contended that his continued support of Farid (who may have some health issues) tells in favour of the applicant’s character.[59] While generally that may be so, it is not the case when the provision of that support entails lying to Australian authorities.

    [57] T2, p.19; T19, p.249. While the form 1258 is not before the Tribunal, the applicant does not dispute this.

    [58] Statement of 9 June 2021.

    [59] Submission letter of 3 February 2021. In his June 2021 statement, however, the applicant stated that he had not seen Farid for around six months and was not sure where he lived.

13. In a form 1399 declaration of service made by the applicant in June 2015, in a section of the form requesting details of siblings, the applicant stated that he had a sister, “Nasima Jalil.” No other siblings were identified.[60] The applicant identified Nasima as his sister because he mistakenly thought that he had “…included her in my initial Prospective Partner Visa Application, because she was living with our parents at that time.”[61] When completing this form, the applicant declared that, amongst other things: “the information I have supplied in or with this form is complete, correct and up-to-date in every detail.”[62]

    [60] T9, p.136.

    [61] Statement of 9 June 2021.

    [62] T9, p.143.

14. In August 2017, in a personal particulars form 80,[63] the applicant again identified as his only sibling a sister, “Nasima Jalil”,[64] stating that his parents’ family name was “Jalil.”[65] When completing this form he again declared that: “the information I have supplied in or with this form is complete, correct and up-to-date in every detail.”[66]

    [63] T13, pp.151-68.

    [64] T13, p.164.

    [65] T13, p.163.

    [66] T13, p.167.

15. On 22 April 2018, in a further information form lodged by the applicant in connection with his citizenship application,[67] after identifying his parents,[68] the applicant responded “no” to a question as to whether he had any immediate family members (defined so as to include brothers and sisters) whose details were not otherwise provided for in the form.[69] Again he declared that “the information I have supplied in this form is complete, truthful and correct in every detail.”[70]

    [67] T17, pp.193-202. The respondent in the R SFIC incorrectly characterised this as another application for citizenship.

    [68] T17, p.200.

    [69] T17, p.201.

    [70] T17, p.202.

    CONSIDERATION OF CHARACTER

16. In light of the just mentioned inconsistences in the information provided by the applicant, it is apparent that the applicant lied to Australian authorities about his family composition on a number of occasions, over a number of years, in order to advance or protect his interests. The applicant only admitted to the truth of his family composition after having been invited in November 2019 to respond to certain information adverse to his citizenship application, being information relating to (amongst other things) the identity of his siblings.[71] It was only in April 2020,[72] when, in response to that invitation, the applicant ultimately provided the respondent with details of his five siblings.

    [71] T19, p.248.

    [72] T24, p.292.

17. This conduct of the applicant does not speak well of his character. There are, however, some broader aspects of the applicant’s life in Australia that do so.

18. After hearing from the applicant, the impression I formed of him was of a person striving to make a good life in Australia for himself and his family, while positively contributing to the Australian community in his role as a husband, father, business operator, taxpayer and volunteer. That impression was only reinforced after hearing from Mr Reza, Ms Ahmad and Mr Ahmad.

19. Mr Reza referred to the applicant’s financial and non-financial contributions to the Australian community; in particular, those in the community originating from Moqor in Ghazni, Afghanistan. According to Mr Reza, the applicant has, since 2013, been an active member of the Moqor community, contributing to all its aspects.[73] In particular, he “…attends meetings, donates to our community and assists with events. Abdul is always willing to give up his time to help others and assist with our events.”[74] In oral evidence, Mr Reza opined that the applicant was a person of good character who was always honest and reliable.

    [73] T25, p.309.

    [74] Statement of Aslam Reza of 8 June 2021.

20. Ms Ahmad, the applicant’s wife, spoke of the applicant completing business and retail services courses in Australia, then establishing his own business in 2016, a business in which they both are engaged. In her written statement, she said that “[s]ince coming to Australia Abdul has worked very hard to establish our life together in Australia and he has supported me and our children. He is a loving husband and father.”[75]  Ms Ahmad was, if anything, even more glowing in her oral evidence in relation to the applicant’s character.

    [75] Statement of Ms Ahmad 9 June 2021.

21. Mr Wali Ahmad (the applicant’s brother-in-law) stated that the applicant is a “caring and loving husband and father” who has worked hard in his own business to care for his family.[76]

    [76] Statement of Wali Ahmad of 7 June 2021.

22. I note that the favourable impression I had formed of the applicant appears to be shared by a number of non-related parties. In material lodged with the Tribunal, Dr Melissa Soares, a general practitioner who had been treating the applicant for around eight years, opined that the applicant was of sound character,[77] as did Ms Mahbooba Nader.[78] Mr John Zun, the principal of an accountancy practice, stated that he had found the applicant to be always of good character.[79] Ms Gul Amini opined that the applicant is a good man who has always looked out for his family and provided for them.[80]

    [77] T23, p.281.

    [78] T25, p.307.

    [79] T23, p.282.

    [80] T25, p.305.

23. While my impression of the applicant was favourable, in coming to a judgement of his character, that impression was not such as to outweigh the significant impact of the applicant having lied to the Australian authorities on a number of occasions over a number of years.

24. In so lying to the Australian authorities, the applicant was endeavouring to advance or protect his (and through him, his immediate family’s) interests. This might make his conduct understandable. It is not, however, the conduct of a person of good character. Nor does it inspire confidence that the applicant would not again engage in deceit were he to perceive it to be in his interests to do so, despite the applicant’s expressions of remorse for his past conduct.

25. In so lying, the applicant engaged in a long-term, repetitive, failure to behave in an ethical manner. An ethical failure of that nature is not, however, necessarily determinative.

26. In Shah,[81] the Tribunal was satisfied as to the good character of a citizenship applicant despite having found that she had lied to the authorities twice about the martial status of her son. The assessment was “marginally tipped” in the applicant’s favour[82] in a context where it was said to have been important that there was no evidence of the person concerned having made other false or misleading statements.[83]

    [81] Shah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2121.

    [82] Shah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2121 at [37].

    [83] Shah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2121 at [36].

27. In this case, unlike the situation addressed in Shah, we are confronted by a series of untruthful statements. It is of importance, as I see it, that the applicant only admitted that they were incorrect after concerns about their accuracy were raised with him by the respondent.

28. While lying to the authorities in the context of visa and citizenship applications is not determinative, it is significant. That significance is reflected in both policy and various Tribunal and judicial decisions.

29. As for policy, as mentioned earlier, in CPI 15 it is said that, as a general proposition, a person of good character would not intentionally provide false personal information in the context of a visa or citizenship application. That is what the applicant did, consistently, over a lengthy period.

30. As for Tribunal and judicial decisions, a lack of honesty when dealing with the respondent has been considered a “very serious matter”.[84] In a context where, as here, a person applies for citizenship, there has been said to be a “…reasonable expectation of the Australian people that a non-citizen will obey Australia’s laws and tell the truth to immigration officials.”[85] To do as the applicant has done and lie to the respondent consistently over a number of years has been said to “…demonstrate that …[the person concerned] 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.”[86] It showed disrespect for the government, thereby reflecting adversely on the applicant’s character “in the statutory sense.”[87]

    [84] Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [23]; Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [73].

    [85] Mohamad v Minister for immigration & Border Protection [2018] AATA 687 at [39] cited in Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [74].

    [86] Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35].

    [87] BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39 at [88].

31. In comments frequently approved of,[88] in Nguyen it was said that:

    “Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship. Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.”[89]

    [88] Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [41]; Chalou and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1514 at [43]; Ramazani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1801 at [25].

    [89] Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082 at [82]-[83].

1. In a similar vein, in Fang,[90] it was said that citizenship applicants:

   “… must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement…”.

   [90] Fang and Minister for Immigration & Border Protection [2018] AATA 3686 at [97].

2. As I see it, rather than lying being determinative as to character, the suggestion in these decisions that there can be no excuse for making false statements and that truthfulness is an absolute requirement simply convey the significance with which the making of false statements and a lack of truthfulness ought to be regarded in judging character.

3. As mentioned earlier, the applicant having lied to the Australian authorities on a number of occasions over a number of years reflects a long-term, repetitive, failure to behave in an ethical manner. That failure weighs against a conclusion that the applicant’s moral qualities are such as to warrant being satisfied that he is now of good character. Given the significance which I attribute to an ethical failure of the nature reflected in the applicant’s conduct, it does so to an extent which overrides the otherwise favourable impression I formed of the applicant.

4. I note that in attributing weight to what I have found to be an ethical failure of the applicant, it is of relevance that it came to be admitted by the applicant only relatively recently, in April 2020. It might well be that the weight to be so attributed will diminish with the lapse of time; so that it might ultimately come to be overridden by factors supportive of a more favourable conclusion as to character.

5. I also note that in making the evaluative judgement required in the circumstances, it is not sufficient that I believe that that the applicant might be a person of good character, which I do. Instead, under the Act, I need to “reach an affirmative belief that he is a person of good character.”[91] I have not reached that belief in relation to the applicant.

   [91] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [55].

6. Hence, I am not satisfied that the applicant is now of good character.

   IDENTITY CONSIDERATION

7. While not strictly necessary given my conclusion concerning the applicant’s character, I turn now to consider whether I am satisfied as to the applicant’s identity.

8. I am so satisfied.

9. As mentioned earlier, information and material provided or obtained in relation to the three pillars of identity in this case has generally been consistent (and I note that the respondent does not contend otherwise).

10. More particularly, subject to, in particular, information the applicant provided about siblings, the characteristics or attributes of the applicant that allow him to be uniquely distinguished from others, as revealed in information provided or obtained about his life story (including information about his parents, place of birth, age, education, places of residence and places visited), have generally been consistent and have not been challenged by the respondent.

11. There is clearly a lack of consistency in information provided by the applicant concerning the family composition aspect of his life story. There are also apparent inconsistencies in information so provided or obtained concerning:

    (a)his parents’ surname. At times it is said by the applicant to have been “Jalil”[92] while at other times it is said to be “Jalali”.[93]

    (b)his international travel prior to arrival in Australia. In 2015 and 2017, the applicant stated that he was in the United Arab Emirates until 2011,[94] before his arrival in Australia; while in 2021 and in oral evidence at the hearing, he said he returned to Afghanistan for a number of months in 2010 and 2011.[95]

    [92] T9, p.136; T13, p.163.

    [93] T23, p.284.

    [94] T9, p.137; T13, pp.154 and 168.

    [95] Statement of 9 June 2021.

12. As for the inconsistency concerning the family composition aspect of his life story, it has been explained by the applicant.[96] He has admitted to lying about it and outlined the circumstances in which that lying occurred. As for the other apparent inconsistencies just mentioned, they were not raised with the applicant and so he has not had an opportunity to address them. In any event, any such inconsistency is not, in my view, such as to undermine the significance, from an identity perspective, of the documentary and biometric material provided by the applicant.

    [96] See Al Khalaf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1716 at [39].

13. As for documentary material provided by the applicant in relation to his identity, it:

    (a)is extensive (as previously outlined); 

    (b)generally, corroborates the applicant’s life story;

    (c)appears to be internally consistent subject to a non-contentious issue concerning the applicant’s date of birth; and

    (d)contains documents of significance that are highly probative as to identity.

14. As to that last point, the documents provided by the applicant in support of his claimed identity include not only his tazkera but also his passport. The genuineness of these documents has not been challenged by the respondent. Nor has the respondent contended that they were obtained through fraud. The story these documents tell is one consistent with the applicant’s life story.

15. As for biometric material provided by the applicant in relation to his identity, as the applicant contended,[97] facial images across several documents were internally consistent, and consistent with the applicant’s life story. In particular:

    (a)The propinquity certificate contained photographs of family members of the applicant, photographs consistent with the tazkeras of those family members (being the tazkeras of his two sisters, Zahra Alizadeh and Najila Jalali).

    (b)The photographs in the original passport issued in Dubai in June 2007 and in the applicant’s current passport appear to be of the same person; a person who, consistently with the applicant’s life story, would appear to have been residing in the United Arab Emirates in 2007.

    [97] A SFIC [76].

16. Moreover, aspects of the applicant’s life story have been corroborated by others. Mr Reza stated that he had known the applicant since they were children together in Afghanistan.[98] Ms Gul Amini stated that she had known the applicant for approximately 30 years, having lived in the same suburb in Afghanistan.[99] Ms Mahbooba Nader stated that she had lived in the same neighbourhood in Pakistan as the applicant in the 2000 to 2004 period, and that she is a close friend of the applicant’s mother.[100] In oral evidence, Ms Ahmad noted that she had met the applicant and his parents in Quetta in 2003.

    [98] T25, p.309; Statement of 8 June 2021.

    [99] T25, p.305.

    [100] T25, p.207.

17. In light of these matters, I am, as mentioned, satisfied of the applicant’s identity.

    CONCLUSION

18. The decision under review to refuse to approve the applicant’s application for citizenship is affirmed. While I am satisfied as to his identity, I am not satisfied that he is of good character.

19. This might seem to be a harsh judgment of a man of whom I formed a generally favourable impression. As I noted earlier, I accept that he might be a person of good character. This is not, however, sufficient in a context which requires that I “reach an affirmative belief that he is a person of good character.” 

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

.....[SGD]........................................

Associate

Dated: 11 March 2022

Date of hearing:

17 and 19 August 2021

Counsel for the Applicant:

Solicitors for the Applicant

Greg Hughan

AUM Lawyers

Advocate for the Respondent:

Sarah Hardie

Solicitors for the Respondent:

HBL Ebsworth Lawyers