JLKJ and Minister for Immigration and Border Protection (Citizenship)

[2019] AATA 716

JLKJ and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 716 (17 April 2019)

Division:GENERAL DIVISION

File Number:           2017/4916

Re:JLKJ   

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:17 April 2019

Place:Perth

The decision under review is affirmed.

.........................[sgd]...............................................

Member C Edwardes

CATCHWORDS

CITIZENSHIP – Afghanistan refugee – application for citizenship refused – bogus driver’s licence – whether Tribunal satisfied of identity and good character – consideration of country information – good character test – decision under review – decision affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 21(2)(h), 24(3), 52(1)(b)

Administrative Appeals Tribunal Act 1975 (Cth) – ss 35(3), 43(1)

Migration Act 1958 (Cth) – s 5(1)

CASES

Beyan v Minister for Immigration and Border Protection [2015] AATA 256

CDNB and Minister for Immigration and Border Protection [2018] AATA 757
Confidential v Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa v Minister for Immigration and Border Protection (2015) 148 ALD 162
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Nguyen v Minister for Immigration and Border Protection [2018] AATA 1082

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

SECONDARY MATERIALS

Attorney-General Department’s National Identity Proofing Guidelines

Department of Immigration and Border Protection -- Australian Citizenship Instructions – Instruction 5.27.1 – Instruction 5.27.2
Department of Immigration and Border Protection – Australian Citizenship Policy – Chapter 7, 11, 13

DFAT Country Information Report Afghanistan (18 September 2017)

REASONS FOR DECISION

Member C Edwardes

17 April 2019

THE APPLICATION

1. The Tribunal is asked to review the Minister’s decision (the decision) refusing to approve the Applicant’s application for citizenship. The decision was made on 20 July 2017 (R1, T1, 10-17) pursuant to s 24(3) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) which provides that the Minister must not approve of a person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. In this case the Respondent is also not satisfied that the person is of good character pursuant to s 21(2)(h) of the Citizenship Act.

2. The application for review is made in accordance with s 52(1)(b) of the Citizenship Act, which allows applications to be made to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of a decision to refuse to approve a person becoming an Australian citizen under s 24 of the Citizenship Act.

3. A confidentiality order was made under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) dated 8 April 2019 giving JLKJ his pseudonym and prohibiting the publication or other disclosure of the Applicant’s name, address or any other information tending to reveal the identity of the Applicant.

   BACKGROUND   

4. The Applicant arrived in Australia from Afghanistan on 7 December 2008 and was granted a Protection (subclass 866) visa on 19 March 2009 (R1, T6, 10). He is currently the holder of a Resident Return (subclass 155) visa (R1, T1, 10).

5. The Applicant filed an application for citizenship dated 10 September 2014 (R1, T6, 107).

6. At an interview on 30 September 2014 the Applicant was asked to supply a number of identity documents. On 15 December 2014, the Applicant provided a Medicare card and Afghan driver’s licence with the NAATI translation. On 15 January 2015 at a further interview the Applicant attended with his Medicare card and Afghan driver’s licence, this time without the NAATI translation. On 27 February 2015 at a further interview the Applicant attended with his driver’s licence with the NAATI translation (R1, T1, 11).

7. On 17 March 2016 (R1, T8, 113-114) the Applicant received a request from the Department of Immigration and Border Protection (the Department) to provide the following documents:

   ·fully completed Form 80;

   ·fully completed Form 1399;

   ·Titre de voyage (U2003996 – expired 6/12/2012);

   ·Titre de voyage (U2013292 – expired 30/05/2014);

   ·Titre de voyage (PU0054106);

   ·Afghan passport;

   ·National ID card (Tazkera) [sic] and NAATI translation;

   ·Proof of Residence card;

   ·Birth certificate and NAATI translation;

   ·Marriage certificate and NAATI translation; and

   ·Police clearance from Iran and Pakistan.

8. The Applicant was also advised that he may wish to provide any of the following documents to help with his case:

   ·Overseas Drivers Lisenses [sic];

   ·school reports; and

   ·educational certificates.

9. The Delegate of the Minister for Immigration and Border Protection (the Delegate) wrote to the Applicant on 20 July 2017 advising him that his citizenship had been refused on the basis that he had failed to satisfy ss 24(3) and 21(2)(h) of the Citizenship Act (R1, T1, 7-8).

10. The Respondent’s advice to the Applicant is contained in the Applicant’s decision record (the Decision Record) which states (R1, T1, 10-12):

    On 11 April 2016 the Department received an Incomplete Form 80 and Form 1399. The uncertified copies of your Afghan driver's licence #AA24263 and associated NAATI translation, an uncertified  copy of your Marriage Certificate and a non-NAATI translation, uncertified copies of your PL056 card, Titres de voyage #U2003996, #PU0054106 and #U2013292, including a visa label #V0036423 issued by Pakistan.  You also provided the Department with a statutory declaration dated 10 April 2016, where you declared that you stayed in Iran for only one month and you only travelled to Pakistan to visit your family on three occasions, each time for less than three months. You stated that as you have not lived in Iran and Pakistan for the duration of twelve months, you feel you do not need to provide police clearances from those countries. You also declared you handed your birth certificate (Tazkera) [sic] to a police officer while you were on Christmas Island, and that you did not receive it back and you believe it is on your file with the Department.

    On 17 June 2016 the Department wrote to you, again requesting you provide an OPC from Iran and Pakistan and provided information on how to apply for these requested documents.

    On 25 August 2016 the Department wrote to you, again requesting you provide an OPC from Iran and Pakistan and provided information on how to apply for these requested documents.

    On 25 November 2016 the Department received another statutory declaration from you, dated 24 November 2016. You declared that you lived in Iran for only one month in 2008 and as you did not have any visa or entry permit for Iran, an OPC would not be issued by Iranian authorities to you.

    On 15 February 2017 the Department wrote to you in response to your statutory declarations, and again explained to you why the Department requires OPCs for your time spent in Iran and Pakistan. In this letter, it was explained to you that the Department has information that you travelled to Afghanistan from 6 July 2012 -30 October 2012. As you were granted a Protection visa on 19 March 2009, based on your inability and unwillingness to return to Afghanistan, the Department asked you to provide an explanation as to why you have subsequently travelled to Afghanistan in 2012. As you received this letter via email, you were asked to reply to this request within 28 days. You were requested to write to the Department if you could not provide the requested information within this timeframe and to provide a valid reason and evidence of your attempts to obtain the documents. Upon receipt of a response, an extension may have been granted for you, depending on your circumstances.

    To date, the Department has no record of your response to this request. The time for providing the requested information has now passed.

    To date you have not provided sufficient alternative documents to support your claimed identity, nor that you are able to satisfy the character requirements for Australian citizenship.

    As such I am unable to be satisfied of your identity and unable to be satisfied that you are presently a person 'of good character' within the meaning, and for the purposes of the Act.

11. On 17 August 2017 the Applicant sought a review of the Decision by the General Division of the Tribunal. The Applicant stated (R1, T1, 4):

    There was incorrect information cited

    An Iranian police clearance was expected where the Applicant clearly indicated it was not possible because he had entered Iran unlawfully thus no clearance was possible

    The Applicant was not aware that the information he did provide should be translated by a NAATI translator; and that it should have been certified true copies

    The ID document, his Taskira, was retained by the Department upon his arrival in Christmas Island, so he ought not be required to provide this document.

12. The matter was heard in Perth in 2019.  The Applicant appeared in person and was represented by a migration agent Mr Pike. The Applicant was assisted by an interpreter, Ms Ashrat. The Respondent was represented by Mr Gerrard of the Australian Government Solicitor.

    RELEVANT LEGISLATION AND PRINCIPLES

13. Section 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Citizenship Act provides that the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

14. Section 24(1A) of the Citizenship Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under sections 21(2), (3), (4), (5), (6), (7) or (8) of the Citizenship Act.

15. Section 21(2) of the Citizenship Act sets out the general eligibility criteria to become an Australian citizen. Relevantly, s 21(2)(h) of the Citizenship Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is ‘of good character’ at the time of the Minister’s decision.

16. The term ‘good character’ is not defined in the Citizenship Act. There is, however, guidance on the application of the ‘good character’ requirement in the Department’s Citizenship Policy (the Policy).  The Tribunal will apply Departmental policy unless there are cogent reasons not to do so, as stated in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Re Drake).

    THE MEANING OF ‘GOOD CHARACTER’

17. Chapter 11 of the Policy provides guidance for assessing an applicant under the ‘good character’ test prescribed by s 21(2)(h) of the Citizenship Act. Chapter 11 of the Policy cites Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432, in which the Federal Court noted:

    Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community.  The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

18. Chapter 11 of the Policy further states that ‘enduring moral qualities’ encompass the following concepts:

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

    ·distinguishing right from wrong; and

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

19. Chapter 11 of the Policy states that the broad definition of ‘good character’ means that:

    … a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.

20. Chapter 11 of the Policy further provides that an applicant of good character would, amongst other things:

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

    …

    ·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example: …

    (i)     concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship…

    ·…not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)…

21. Chapter 11 of the Policy also provides that in weighing up whether an applicant is of good character, decision makers are required to apply community standards, not their own personal standards; and to question whether there any mitigating circumstances or explanations provided by the Applicant which outweigh the Applicant’s behaviour in question.  Decision makers are to consider factors including:

    ·would a person of good character have behaved the way the Applicant did

    ·what is there to demonstrate that the Applicant has upheld and obeyed the law

    ·has the Applicant behaved in accordance with Australia’s community standards

    ·does the Applicant share Australia’s democratic beliefs and respect its rights and liberties.

22. Chapter 11 of the Policy states:

    A decision maker needs to look holistically at an applicant’s behaviour over a lasting and enduring period of time.  The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.

23. The Policy states that:

    [r]eferee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character.  Decision makers should give very little weight to references which do not acknowledge the offence or incident.  However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application. 

24. When considering whether an Applicant who has had previous criminal convictions is a person of good character, Deputy President Wright in Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 stated at [14]:

    When criminal offences have been committed by an applicant they will obviously be taken into account.  The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.

25. The definition of bogus documents is provided in s 5(1) of the Migration Act 1958 (Cth) (the Migration Act).  It states:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)purports to have been, but was not issued in respect of the person; or

    (b)is counterfeit or has been altered by a person who does not have authority to do son; or

    (c)was obtained because of a false or misleading statement, whether or not knowingly.

    [original emphasis]

26. Section 24(3) of the Citizenship Act provides that the Minister must not approve of the Applicant becoming an Australian citizen unless the Minister is satisfied of the identity of the Applicant.

27. Chapter 13 of the Australian Citizenship Policy states:

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

28. The Tribunal notes instruction 5.27.2 [sic – 5.27.2.27.2] of the Australian Citizenship Instructions (the ACIs) which states: 

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

29. Instruction 5.27.1 of the ACIs further states, under the heading ‘Minister’s decision (s24) – summary,’ that ‘[t]here are a number of circumstances where an application for citizenship by conferral must not be approved. These relate to: identity…’

30. The Tribunal is assisted by the Australian Citizenship Policy and Australian Citizenship Instructions. The Policy and Instructions provide assistance to those who administer the Citizenship Act, as stated in Re Drake.

31. In Re Drake; Brennan J (at 642) stated:

    In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.

32. He further explained how the AAT might apply government policy when reviewing decisions (at 635):

    …(vii) The Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice: When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.

    ISSUE

33. The issue for determination by the Tribunal is whether the Applicant satisfies sections 21(2)(h) and 24(3) of the Citizenship Act. That is, the Tribunal is to determine whether the Tribunal is satisfied with the character and identity of the Applicant.

    EVIDENCE

34. The Tribunal received the following:

    ·Exhibit A1 – Applicant’s Statement of Facts, Issues and Contentions dated 15 February 2019;

    ·Exhibit A2 – Statutory Declaration of  the Applicant dated 5 September 2018;

    ·Exhibit A3 – Statutory Declaration of the Applicant dated 24 June 2018;

    ·Exhibit A4 -- Statutory Declaration of the Applicant  dated 11 May 2018;

    ·Exhibit A5 – Birth Certificate of  the Applicant;

    ·Exhibit A6 – Afghanistan driver’s license [sic] (translated);

    ·Exhibit A7 -- Copy of Applicant’s passport bio-data page and visa grant stamp;

    ·Exhibit A8 – Birth Certificate of the Applicant’s Son 1 ;

    ·Exhibit A9 -- School reports of the Applicant’s Son 1– 2017/2018, 2018/2019;

    ·Exhibit A10 – Birth Certificate of the Applicant’s Son 2;

    ·Exhibit A11 – Birth Certificate of the Applicant’s Son 3;

    ·Exhibit A12 – Various travel documents:

    ovisa to Pakistan – 17 March 2011 to 16 September 2011;

    othe Applicant’s passport bio-data page, departed and arrival date and visa grant stamp;

    ovisa to Pakistan - 19 September 2013 to 27 October 2013;

    othe Applicant’s passport bio-data page;

    ovisa to Pakistan - 15 June 2016 to 14 December 2016;

    ovisa to Pakistan - 15 August 2016 to 25 September 2016;

    ovisa to Pakistan - 28 September 2016 to 8 November 2016;

    ocopy of the Applicant’s passport page, arrival date stamp; and

    oAustralia Post receipt;

    ·Exhibit A13 – Copy of Applicant’s Marriage Certificate;

    ·Exhibit A14 – Declaration of service – Form 1399;

    ·Exhibit A15 – Personal particulars for assessment including character assessment – Form 80;

    ·Exhibit A16 – Hearing Certificate;

    ·Exhibit R1 – T documents (T1,14, 1-167);

    ·Exhibit R2 –Respondent’s Statement of Facts, Issues and Contentions dated 17 December 2018; and

    ·Exhibit R3 – Hearing Certificate.

1. Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.  Relevant aspects of the evidence are referred to below.

2. The Applicant makes the following contentions (A1):

   Character

   11.Pakistani Police Clearance. The Department’s reliance on the information given in its website on obtaining overseas Police clearances whilst may be theoretically correct, with due respect demonstrates absolutely no idea whatsoever of the practicalities of the obtaining a Police clearance from Pakistan. Personal experience with a number of clients over the past several years has shown this to be to all intents and purposes impossible. Indeed the Applicant applied through the instructed method for a clearance in April 2017, yet to date we have heard absolutely no response from the Pakistan Embassy on the matter. This is consistent with ALL applications made by ALL of my clients, ranging back more than two years. Despite advice from the Pakistani Embassy that the process takes from 4 to 6 months, we have never received even one for more than 2 years.

   12.Afghani [sic] Driver’s License [sic]. The Respondent asserts that the applicant’s providing a non-genuine document is indicative of a lack of good character and is evidence of an inability to distinguish between right and wrong. However the Applicant strongly disagrees and contends that indeed what this does clearly demonstrate is ONLY his inability to distinguish between a genuine Afghan Driver’s license [sic] and a counterfeit one. Indeed it is ridiculous to expect the Applicant, a relatively uneducated man, to recognize the document as being non – genuine where the Afghan Police did not – on numerous occasions.

   13.The Respondent contends that the Applicant’s willingness to bypass formal processes where those processes are deemed inconvenient by the applicant casts a shadow of doubt over his character. The Applicant contends that it is of utmost importance the [sic] remember we are not dealing with the Australian society or Government agencies. Indeed we are dealing with the normality of real life in Afghanistan, more precisely in a scarcely regulated province where the [ethnic group omitted] people must do what is necessary to get by.  It is the NORM there for applicants for driver’s licenses [sic] to use a fixer who has a contact inside the Pashtun staffed department rather than going direct. In the latter case one may expect to be messed around from one to another, each demanding a sizable bribe with no guarantee of service; whereas with the fixer such a bribe will be paid on your behalf to only the one officer inside the licensing department and a genuine driver’s license [sic] will be produced for you.  It is totally naive to expect any [ethnic group omitted] Afghan to do anything other than this, therefore simply conforming with the norm must not be construed as “willingness to bypass formal processes where those processes are deemed inconvenient by the applicant” and accordingly must not be used to imply or assert bad character.

   14.It must be remembered that when requested the Applicant happily voluntarily surrendered his Afghan Driver’s License [sic] for examination. The only inference one may take from this is the confidence of the Applicant of the bona fides of the document. It is ludicrous to believe for even one moment that a person would knowingly submit a document for expert examination if he believed there was even a chance that it was not genuine; further it is not realistic to expect his representative to hand up the document in such a case. This can ONLY go to suggest good character, not bad.

   15.The Respondent further asserts that the Applicant only offering an explanation of the manner of his acquisition of the driver’s licence after the document had been established to be bogus similarly casts doubt on his character. However this logic is fatally flawed, as he would have no idea of any need to explain if he believed the document genuine. Indeed the opposite may well be contended, in that if an explanation was offered pre-emptively this could be construed as an awareness or doubt of the bona fides on the document.

   16.The Respondent submits that the Tribunal ought to have regard to the Applicant’s acceptance that the document is bogus. Indeed the Applicant would submit similarly, but with the opposite inference to be drawn. In truth he simply bowed to the decision of an examiner who he recognises is far more qualified that he to make such a determination.  The Applicant further submits that because the document was found not to be genuine, albeit contrary to his belief, that he no longer wanted to keep it BECAUSE it was deemed to be non – genuine. Indeed if he were to challenge the findings of an expert document examiner and want the document returned, that ought to be more troubling to the tribunal.

   17.It is very important to note is the Respondent’s later expression “ … the Applicant’s admission that the document is not genuine and that it was acquired in highly dubious circumstances …. ” (emphasis supplied) is indeed a highly inaccurate twisting of the truth. In truth, the Applicant ACCEPTED that the document may be non – genuine, but that it was obtained in the NORMAL manner in that location, custom and culture.

   18.The Respondent makes mention of a DFAT report dated 18 September 2017 which claims widespread document fraud in Afghanistan. The Respondent continues from there and to all intents and purposes asserts that because this report makes such warnings then we ought to assume that all of the Applicant’s documents are fraudulent. However although this is not a criminal charge against the Applicant, it could be argued that if the Respondent wishes to make such an assertion of guilt, then he should first prove that to be true beyond a reasonable doubt, somewhat consistent with the provisions in s.13.2(1) Criminal Code Act 1995. Conversely burden of proof upon the Applicant should be on the balance of probabilities, consistent with s.13.5 Criminal Code. Indeed totally without evidence, the Respondent asserts that because of concerns expressed by DFAT in respect of the prevalence of fraud in Afghanistan, the Tribunal should consider that all the Afghanistan documents produced by the applicant are bogus and have been obtained improperly.  This is clearly at odds with the Applicant’s right to the presumption of innocence afforded under Common Law; and such a position should not be adopted either by the Delegate initially, the Respondent in this instance, nor by the Tribunal in considering this case.  It is important to remember that there is NO evidence of any of these documents being non – genuine.

   19.The Respondent wrongly asserts that the Applicant admitted that the document is not genuine and that it was acquired in highly dubious circumstances; and based upon that error contends that all documents provided by the Applicant should be treated as highly questionable. However the Applicant contends that the opposite is true. Indeed it is the Applicant’s position that at the time of filing and even at the time of voluntarily submitting the Afghan Driver’s License [sic] for examination, he firmly and genuinely believed all documents provided to be real and that they had been obtained in the correct normal manner. The Applicant further respectfully submits that this indeed should be taken by the Tribunal to demonstrate the Applicant’s genuine intent and belief in the provision of all documents; confirming identity and good character.

   20.It is the Applicants [sic] contention that he has genuinely done all in his power to comply with the requests for documents made by the Department in providing documents which he understands and believes are genuine and were obtained in the correct way.

   [original emphasis]

3. The Tribunal notes the Respondent’s evidence regarding the document provided by the Applicant (R1):

   12.The applicant commenced review of the decision on 17 August 2017. He has subsequently provided additional documents which included a copy of a document purporting to be an Afghanistan driving licence. The respondent requested the document be provided for examination by the Department’s Document Examination Unit (DEU). On 8 June 2018 the applicant submitted the document for examination.

   13.On 14 June 2018 the DEU examined the document and concluded that the document is a counterfeit Afghanistan driving licence.

   14.On 19 June 2018 the Department issued a Notice of Seizure of Bogus Documents pursuant to s 45B(2) of the Act.

   15.      On 24 June 2018 the applicant filed a statutory declaration which stated:

   a.        I have never had any formal education in my life.

   b.I obtained my driver’s license [sic] through a “fixer” who I met at “Kabul Station” in Ghazni City (the taxi and bus station for passengers between Ghazni and Kabul). I had been referred there by a friend.

   c.I am aware that it is a common practice in Agfhanistan [sic] to obtain a driver’s license [sic] in this manner. I understand that the fixer goes to a friend inside the Traffic Management Department in Ghazni and obtains the license [sic] for you much more easily than going into the Department yourself;

   d.It has always been my firm understanding that the licenses [sic] obtained in this way are in fact genuine;

   e.Until I received the abovementioned notice I always firmly and truly believed my driver’s license [sic] was genuine;

   f.I drove a taxi in Afghanistan for several years with that driver’s license [sic] and was stopped by police many times;

   g.Each time I was stopped I showed that driver’s license [sic] and it was never queried. Therefore I have never had any reason whatsoever to doubt the bona fides of this document;

   h.When I submitted this document to the Department of Home Affairs I firmly and honestly believed it to be genuine.

   i.I would never have submitted this document if I had thought for even one moment that it was not genuine. I believe that is the wrong thing to do; and also very foolish because I believe fake documents will be discovered and cause immense trouble for the holder;

   j.I believe my belief in the bona fides of this document is demonstrated by the willingness with which I submitted it for examination. I fully expected it to be declared genuine; and I was extremely surprized when I was informed that it is not.

   k.I declare that I have NEVER knowingly or intentionally submitted any bogus document nor have I ever knowingly or intentionally given any false or misleading information to the Department.

   l.I do not wish to recover the document because I now believe it is not genuine, based upon the say so of the Department. I have absolutely no use for any bogus document.

4. The Tribunal further notes the Respondent’s evidence regarding the good character and identity of the Applicant (R1):

   CONTENTIONS

   Good character

   28. Whilst the applicant has not been convicted of any offence, both the authorities and policy make it clear that whether a person is of good character is not limited to the existence of criminal convictions.

   29. It has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character (see Lachmaiya v Department of Immigration (2004) AAR 148, , Al Temimi v Minister for Immigration and Border Protection [2014] AARA 97, Beyan v Minister for Immigration and Border Protection [2015] AATA 256). That is equally clear from the Citizenship Policy cited above.

   30.The respondent contends that the applicant’s involvement with the provision of a non-genuine document is indicative of a lack of good character. It is at the very least evidence of an inability to distinguish between right and wrong. Put simply, and in the context of the Citizenship Policy, a person of good character would not provide a non-genuine document.

   31.Furthermore, the respondent notes that DFAT has documented the high prevalence of fraud in its Country Information Report on Afghanistan dated 18 September 2017. The DFAT report provides the following warning in respect of the prevalence of fraud in Afghanistan:

   Document fraud is a major issue in Afghanistan. Because the process for obtaining some documents is decentralised to the provincial level, and because the documentation itself generally does not contain robust security features, the system is vulnerable to fraud. Genuine documents can be issued on the basis of false information, with supporting forms of documentation such as school, academic, or banking records easily forged. This is particularly problematic in the case of taskiras given they are the primary document used to obtain other forms of identification.

   32.Whilst any involvement with fraudulent documentation is of deep concern, it is all the more troubling in the context of widespread abuse and the impositions on resourcing that places upon government departments. Given the widespread practice of document fraud in Afghanistan the respondent submits that it is not credible that the applicant was unaware that the document was not bogus (see Azimi and Minister for Immigration and Border Protection [2016] AATA 722 at [59].

   33.The respondent contends that the applicant’s involvement in the use of a “fixer” to obtain his driver’s licence casts a shadow over his character. It is at the very least indicative of a willingness to bypass formal processes where those processes are deemed inconvenient by the applicant. It is also concerning that the applicant did not provide an explanation for the manner of his acquisition of the driver’s licence until after the document had been established to be bogus. Neither has the applicant sought to provide any explanation or assure the Minister that other documents submitted as evidence of his identity have not been similarly acquired by a “fixer” or other dubious means. The respondent contends in this regard that all of the applicant’s evidence lack credibility as the “well has been poisoned beyond redemption” in the sense identified by the High Court in Applicant S20/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 at [49] per McHugh and Gummow JJ.

   34.Ultimately, where the evidence indicates that the applicant has provided a bogus document that constitutes prima facie evidence of a lack of good character. In this regard the respondent submits that the Tribunal should have regard to:

   34.1.    The applicant’s acceptance that the document is bogus; and

   34.2.The highly dubious means by which the applicant acquired this document.

   35.Furthermore, the applicant has failed to produce an overseas penal clearance from Pakistan and in those circumstances it is not possible to be satisfied that the applicant is of good character: see Katambwe at [22].

   Identity

   36.The respondent contends that the Tribunal is faced with an application where it cannot be certain of the applicant’s identity to the standard expected for the conferral of Australian citizenship. A certificate of Australian Citizenship is a legal document of considerable significance: see Beyan at [38]. The Tribunal should not countenance an outcome which could lead to a certificate being issued in circumstances where, as here, the identity of the applicant is not clear.

   37.The respondent acknowledges that there are circumstances where an applicant should not be required to produce documents appropriate to an established society: Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117]; YMPL and Minister for Immigration and Border Protection [2017] AATA 1458 at [34]. However, that does not mean that an applicant is to be excused for providing bogus or dubious documents. The critical issue is not simply that the bogus driver’s licence is not a credible document for establishing the applicant’s identity but rather that it casts significant doubt over the entirety of the documentation and information provided by the applicant. The applicant’s admission that the document is not genuine and that it was acquired in highly dubious circumstances should cause the Tribunal to have significant disquiet in respect of all of the documents submitted by the applicant and the credibility of his evidence in general.

   38.This is all the more the case in light of the concerns expressed by DFAT in respect of the prevalence of fraud in Afghanistan. Put simply, the Tribunal can have no confidence that any of the Afghanistan documents produced by the applicant are genuine or have been obtained properly.

   39.In these circumstances, the respondent contends that the applicant’s identity is unclear and cannot be satisfactorily ascertained.

5. The Applicant has provided the following statutory declarations responding to a number of issues raised in the Respondent’s SOFIC:

   I, [JLKJ], [employment omitted],of [address omitted] make the following declaration under the Statutory Declarations Act 1959:

   1)    I am the Applicant for Review in the General Division of the Administrative Appeals Tribunal with reference number 2016/4916;

   2)    On 27 August the representative of the Respondent wrote to my representative requesting responses to a number of questions. My responses are as follows:

   3)    I never attended schooling and have no school records;

   4)    Form [sic] 1994 until 2002 I lived and worked in Iran. I had crossed the border from Afghanistan in Herat into Iran through the town of [town omitted]. I entered Iran unlawfully;

   5)    I left Afghanistan to enter Iran during the time of the Taliban rule to escape the oppression by the Taliban and also to find safer work;

   6)    I worked in Iran as a [employment omitted] for cash. I sent money home to my family in Afghanistan. During my time in Iran I did not have identity papers which made it quite difficult. I needed to be constantly on guard in case the Police found me. I knew that when the Police caught unlawful Afghan workers they would arrest and deport the workers. During this time I was caught and deported only once, after which I immediately returned to Iran;

   7)    When I finally left Iran and returned to Afghanistan I crossed the border back through Herat. No documents were used for that crossing;

   8)    During my time working in Iran I was able to save the money to buy a taxi when I returned to Afghanistan in 2002;

   9)    The Respondent has stated that I was a taxi driver and travel agent. I must clarify the term ‘travel agent’ as it is not what one would associate as a travel agent in Australia. This position there was more of a ‘fixer’ or scheduler. When people want to travel they will go to a taxi office and the agent is the one who assigns them to the next taxi leaving. The taxi driver is the one to pay the agent. I was a partner with the main agent in that office which was next to [building omitted] in [town omitted], Jaghori. I also drove my taxi when my turn came;

   10) When I bought my taxi I signed a paper, like an informal deed of sale and paid the money. There was not an official form for the purpose. The license [sic] papers were then transferred to me. This is the standard practice to buy a taxi there;

   11) In 2003 I obtained a Tazkira [sic] from the Tazkira Office [sic] in Ghazni (Valiet). This was the first Tazkira [sic] I had. I travelled from Jaghori to Ghazni for the purpose. I wanted a Tazkira [sic] because I planned to apply for a passport. The process I followed was as follows:

   a)    I went to the office with my father’s Tazkira [sic]. At that time my father was already deceased;

   b)    The office gave me a form to be filled out to confirm my identity. I took this form to a person I knew who was a Government worker in Ghazni who was from Jaghori in the same place as me. This person sighed [sic] the form vouching for me that he knew me and how old I was;

   c)    I then took the form back to the Tazkira [sic] office and they issued my Tazkira [sic]. It took only about 3 to 4 hours to release my Tazkira [sic];

   d)    I paid 20,000 Afghanis then which is equivalent to only about 20 Afghanis in today’s money (roughly 37 cents in Australian);

   12) My wife and children were living in [town omitted], Hazara Town, Quetta, but they are now back in Afghanistan living in [town omitted], Jaghori. I am the only one who has supported them by sending money to them from Australia through a money transfer company named [company name omitted]. My wife is not working, only caring for the house and family;

   13) When we were in Pakistan my children were not attending school;

   14) Now that they are back in Afghanistan my children attend [school name omitted]. My wife needed the children’s Tazkiras [sic] to enrol them.

   15) The Respondent asked me to complete a Family Composition Form detailing all my relations living in Australia. I have no relations to my knowledge living in Australia. It is important to remember that the family name “[family name omitted]” is a common name meaning [name meaning omitted]; and we are not all related;

   16) I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under s. 11 Statutory Declarations Act 1950, and I believe that the statements in this declaration are true in every particular. (A2)

   I, [JLKJ], [employment omitted], of [address omitted] make the following declaration under the Statutory Declarations Act 1959:

   1. I am the Applicant in an Application for Review with the General Division, Administrative Appeal Tribunal with reference number 2017/4916. My Department of Home Affairs Client ID is [CID omitted];

   2. I was requested to submit my Afghan Driver’s License [sic] to the Document Examination Unit of the Department of Home Affairs in Perth. On 8 June 2018 my migration agent Mr Barry Pike submitted the license [sic] on my behalf for examination;

   3. On 22 June 2018 I received through my migration agent Mr Pike a Notice of Seizure claiming that my driver's license [sic] is bogus;

   4. In answer to that allegation I wish to respectfully submit the following:

   a.   I have never had any formal education in my life;

   b.    I obtained my driver's license [sic] through a “fixer” who I met at “Kabul Station” in Ghazni City (the taxi and bus station for passengers between Ghazni and Kabul).  I had been referred there by a friend;

   c.    I am aware that it is a common practice in Afghanistan to obtain a driver’s license [sic] in this manner.   I  understand  that the fixer goes to a friend inside the Traffic Management Department in Ghazni and obtains the license [sic] for you much more easily than going into the Department yourself;

   d.    It has always been my firm understanding that the licenses [sic] obtained in this way are in fact genuine;

   e.    Until I received the abovementioned notice I always firmly and truly believed my driver's license [sic] was genuine;

   f.   I drove a taxi in Afghanistan for several years with that driver’s license [sic] and was stopped by police many times;

   g.    Each time I was stopped I showed that driver’s license [sic] and it was never queried. Therefore I have never had any reason whatsoever to doubt the bona fides of this document;

   h.    When I submitted this document to the Department of Home Affairs I firmly and honestly believed it to be genuine;

   i.   I would never have submitted this document if I had thought for even one moment that it was not genuine. I believe that is the wrong thing to do; and also very foolish because I believe fake documents will be discovered and cause immense trouble for the holder;

   j.   I believe my belief in the bona fides of this document is demonstrated by the willingness with which I submitted it for examination. I fully expected it to be declared genuine; and I was extremely surprized [sic] when I was informed that it is not;

   k.    I declare that I have NEVER knowingly or intentionally submitted ANY bogus document nor have I ever knowingly or intentionally given any false or misleading information to the Department;

   l.   I do not wish to recover the document because I now believe it is not genuine, based upon the say so of the Department. I have absolutely no use for any bogus document;

   m.   This entire document has been read and explained to me in my own language and I hereby declare that it accurately reflects the statements I want to make;

   5. I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under s. 11 Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular. (A3)

   [original emphasis]

   I, [JLKJ], Self – employed [employment omitted], of [address omitted] make the following declaration under the Statutory Declarations Act 1959:

   1. I am the Applicant in an Application for Citizenship and subsequent Application for Review of the decision to refuse that application;

   2. In the Decision it was claimed the “Department has information that [I] travelled to Afghanistan from [arrival date omitted] July 2012 – [departure date omitted] October 2012”;

   3. I declare that I did not travel to Afghanistan during this period nor at any other time since I fled Afghanistan and sought protection;

   4. My travel document from that time contains Immigration stamps which show that I arrived into Pakistan in Quetta on [arrival date omitted] July 2012 and departed on [departure date omitted] October 2012 (Annexure “A”). Clearly I cannot have been in Afghanistan on [date omitted] July nor between [dates omitted] October 2012 as claimed;

   5. I declare that my brother [name omitted] escorted my wife and children to Quetta by road to join me. They arrived in Pakistan shortly before I did. My brother [name omitted] asked me to give him my new mobile phone as a favour for bringing his [sic] wife and children to Quetta. I gave it to him with the Pakistani SIM which was in it. I then bought myself a new phone and SIM. After a short time my brother returned to Afghanistan and took the phone with him;

   6. I declare that I did not attend school, therefore I have no school records;

   7. I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under s. 11 Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular. (A4)

   HEARING

1. The Applicant, through his advocate, opened by stating (Transcript, p8):

   The basic assertions are that, first of all, his ID can’t be established.  Secondly, that he’s of bad character.  I’d like to address the bad character first.

   This is where it comes down to the normal means, in Afghanistan, for [ethnic group omitted] people.  I'm not talking about in general, but for [ethnic group omitted] people, and it's important that we realise [ethnic group omitted] people face serious persecution and, indeed, well, abuse.  I would say that the provision of a drivers licence was one of the key issues, and I'd like to ask [JLKJ] about that in a moment.  The other issue is not providing police clearances from Pakistan and Iran, and I'd like to deal with that in a moment too.

   Now, actually both of those issues have been dealt with, by way of stat dec and also the provision of the police clearances has also been – the receipt for the application, which was sent to the Pakistan Embassy……

2. The Respondent opened by stating (Transcript, p9):

   I’ll be very brief, Member.  You’ve dealt with a number of identity matters and you know that there can be a somewhat chaotic confusion and an absence of documents.  This matter, from the respondent’s point of view, boils down to a very simple proposition and that is there’s an admission that the document that was provided was bogus.  There was an admission that it was not obtained in the ordinary course.  That leads the tribunal to a number of difficult issues. 

   First of all, the concept of good character, in the sense of what is set out in the citizenship instructions and the authorities and what is generally held to be indicative of good character in this country does not extend to engaging in these sorts of processes, irrespective of whether or not it might be said to be common – or isn’t common, there is no evidence of that before the tribunal.  It is very difficult in order to find that.  But it is certainly not indicative of what’s the instructions considered to be of good character, and it’s very – the instructions do often deal with being honest with authorities, at the very least, the applicant should have notified the Department, that is how this document was obtained.

   But, beyond that, a good character is very rarely, sort of, dealt with at the same time as identity, because you need to satisfy the Tribunal, or the decision maker of who a person is before you go on to make that assessment, as to good character – well, good character, and the difficulty is, in two forms in this matter.  Where there's been an admission that a significant document is in fact obtained fraudulently, first of all there can be no confidence in that document itself, but it poisons the well in respect of all other documentations, and all other attestations of identity.

   The fact is, is that we have principal document, and admission that it’s bogus, and therefore the respondent’s position is how can this Tribunal be satisfied of any other document, or any other assertion, who has submitted that document.  That is the case, in a nutshell.  Where you have a significant document thrown – thrown into – well, we not thrown into confusion, but established as false, then everything else goes by the wayside, until such a time as significantly objective evidence can be put forward.

   Maybe the applicant can obtain objective evidence, established evidence, and meet the criteria to establish the identity in the useful form.  But until that time, I don't think in these circumstances that it’s sufficient to fall back on, “Well, things are difficult in Afghanistan, it’s difficult to obtain documents.  You have to understand the situation over there.”  What we do understand is a false document was provided, and that’s the respondent’s case in a nutshell.

3. The Applicant provided the following evidence:

   ·He got his driver’s licence in Ghanzi province from the transport office.

   ·When asked if he applied himself or used a fixer, the Applicant said: ‘In Afghanistan, they are taking bribe, and you are – without paying any money, nobody will listen to you.  You have to pay to someone to do the things for you.’ (Transcript, p10)

   ·He believed at the time he obtained his driver’s licence that it was genuine.

   ·He drove a taxi for three to four years and was stopped by the police during that time. No one indicated to him that the licence was not genuine.

   ·At the time of submitting his citizenship application with his driver’s licence he thought his licence was genuine. He stated: ‘Yes, of course I was sure.  If I was not, I wouldn't provide it.’ (Transcript, p11)

   ·He said the process by which he got his licence was normal in Afghanistan and believed it was the correct way.

   ·He obtained his taskira in Ghanzi province, by supplying his father’s taskira number.

4. Under cross-examination, the Applicant stated:

   ·He accepts now that the driver’s licence is not genuine.

   ·He may have used the term fixer for the purpose of obtaining his driver’s licence. He said: ‘The person who got the driving licence is just like a driving school instructor.  He – he – he has that position, and I – and he was dealing there, and I don't know what they call it.’ (Transcript, p16)

   ·He could not remember if he said that it was easier using a fixer who would go to a friend he had inside the office. He explained:

   The driver who introduce me – who introduce that person to me, he was the person who was going to the office of transport and getting the driving licence, and I don't know what is his position or his situation. (Transcript, p16)

   ·He reiterated that in Afghanistan bribery was part of every-day but his action in the way he went about to get his licence was not a bribe.

   ·When asked if he used someone to get his licence why didn’t he use someone to get his taskira, that:

   In Afghanistan, any office has their own, you know, deal with people, and it is not the same everywhere.  They don't care about the government, they do their own deals. … To get the driving licence, you have to go through like a driving school persons, and he can get that driving licence for you.  But for the tazkera [sic], you have to go there in their office, and present, you know, the father's tazkera [sic] number, and then they check the book, the register book, then according that they will issue. (Transcript, p17)

   ·He said he was in possession of his original taskira and was happy for it to be formally assessed as to authenticity.

5. The Applicant was re-examined and stated:

   ·He accepted the Department’s assessment that his licence was not genuine.

   ·He accepted that had he not paid a bribe it would have been difficult or impossible to get a licence.

   ·He had not received any response for a police clearance from Pakistan.

6. The Applicant stated that he wanted to be an Australian citizen so he could bring his family out from Afghanistan.

7. The Applicant’s representative made the following closing remarks:

   The first point I make, Member, is that there's been quite a lot of weight put on the semantics of whether he accepted or admitted that the driver's licence was not genuine.  Indeed, I believe that the evidence shows that he provided a document that he believes to be genuine, and only at the point where he was told that it has been examined by experts, it was at that point that he accepted the, or bowed down to, the opinion of experts, that it was not genuine.

   I would further – I take that further.  An assertion was made, or a contention was made, that because he had provided this document, it showed that he was bad character, and didn't know right from wrong.  As was answered in his contentions, he has only demonstrated that he did not know how to tell a genuine from a non-genuine driver's licence, and also that he has been driving for some time, including – and commercially driving for some time, and had been picked up by police with no comment on the bona fides of the driver's licence.

   I would also submit that the assertion that because the driver's licence turned out to be not-genuine, that it is not acceptable to simply extrapolate that to say that all documents are bogus.  Each document should be taken on its own value, and to that end, I've asked [JLKJ], and he says he does have the original, that he hand-carried here, tazkera [sic], and is prepared to surrender that for examination.

   Whilst Mr Gerrard says that the issue of character hasn't yet been decided, I fact this was one of the grounds for refusal, and I would just note that the issue of character is being used to dispute the ID.  So, in other words, the issue of providing a document which is not genuine has actually been extrapolated to say, well, he's a bad character, so we can't believe any of the documents.

   MEMBER:  I think what they're saying, Mr Pike, with respect, is that because of the nature of that document, they're not sure if it's based on that information, whether the remainder of documents are correct.

   MR GERRARD:  Yes, yes.

   MEMBER:  I think that's what they're saying.

   MR GERRARD:  Yes, that would be right.

   MR PIKE:  Yes.  I'll put it a little bit differently.  I would accept that point, but I would say that we do need to examine all the documents on their own merit, rather than simply on one.  Now, you asked some questions regarding visits.  I would just like to note that the visits are not in Afghanistan, they're in     

   MEMBER:  I know, outside.  Granted.  Because he's a protection.

   MR PIKE:  Exactly.

   MEMBER:  I understand.

   MR PIKE:  And also he would not, probably get out of Afghanistan again.  There was actually also     

   MEMBER:  Whilst you're there, you can also answer this for me.  He came here, when did he come here?

   MR PIKE:  I think it was – it was just after – what date did you first come here?

   MR GERRARD:  7 December 2008.

   MEMBER:  So he got married in 2000, right.  Now Mr Pike, maybe you can answer this for me.  Why didn't he come out with his family?

   MR PIKE:  Member, it's generally considered way to unreliable for families to come, women and children to come.  The other issue is, and this is only from my own personal experience with other clients as well, men are usually the ones who are at greater danger there of being murdered by the Taliban.  Although having said that, some women – women are sometimes murdered, but very rarely.  It's mainly the men.  Children, almost never.  I've not heard of children being murdered, but I've heard of many men.  In fact, I used to get reports daily of how many people.

   MR PIKE:  Yes, yes.  You also questioned the reason it took him so long to respond.  He really didn't know exactly what was being asked of him.  He only came to me once the case had already been refused, and a friend of his introduced him to me.  At that point he said he wished he'd seen me before, but it hadn't happened.

   So I think that basically in a nutshell, I would simply summarise it by saying that yes, he has submitted a bogus document, but not knowingly.  He has been confident at the time that he's done the right thing.  He has not demonstrated bad character, more bad judgment or more not knowing the difference.  I would certainly submit that it is the standard practice for [ethnic group omitted], certainly, in Afghanistan to actually go use a fixer, although the term "fixer" was my term.  I maybe should have been a little more careful in coining that phrase myself. (Transcript,  pp25-28)

8. The Respondent made the following closing remarks:

   MR GERRARD:  Thank you.  Member, I am perhaps not as organised as I ordinarily am, but you probably heard my submissions on identity too many times as it is.  Suffice to say, the question of identity and citizenship is a fundamental issue.  It is a very important document, one of the most fundamental documents in our country. 

   The Act, the policy, the authorities, all make it clear that where identity is unable to be satisfied, a citizenship certificate must not be granted.  Having said that of course, you're well familiar with all of the authorities and all the decisions of this tribunal will accept that applicants who come from disrupted societies, and Afghanistan is clearly one of those, are not held to the same standard as they would be in applicants who apply from countries that are more akin to the bureaucratic levels in Australia.

   So ordinarily, identity matters come down to whether or not an applicant has provided sufficient documentation and whether or not that documentation is credible, and there is country information referred to in our SOFIC which details the difficulties in respect of Afghanistan, and that's fairly accepted I think by Mr Pike in respect of document fraud within Afghanistan.

   But a battle of competing country information is not required in this matter because the driver's licence which was proffered by the applicant was surrendered for assessment and it was found to be a counterfeit document.  Now it occurred to me that because this is being accepted by the applicant, the evidence has not been put before the tribunal.  The report itself is not available.

   But what I do have for the tribunal is the notice of seizure of bogus documents.  Mr Pike has obviously seen this for some time, and I will just tender if I may that document.

   MEMBER:  Do you want it in the exhibits?

   MR GERRARD:  Yes, it's simply     

   MEMBER:  Mr Pike, have you got any objection?

   MR PIKE:  No objection, Member.

   MR GERRARD:  It's referred to in our SOFIC, Member.

   MEMBER:  Yes, right.

   MR GERRARD:  And it's simply provided an evidentiary basis for the fact that the department did     

   MEMBER:  Okay, I'll also mark it as exhibit R4.

   MR GERRARD:  Yes, that's correct.  Now there are consequences that flow from a document being seized as a bogus document.  The applicant has rights in terms of going to the Federal Court to seek a declaration that it either be returned, or that it be declared not to be a bogus – or not to be a forfeited document, and that would require a finding as to whether or not it was genuine or not.  The applicant did not do so.  The applicant's statutory declaration, I don't think is really an issue about semantics.  The statutory declaration of the applicant accepted that the document was non-genuine on the basis of the advice of the department; did not press for its return; did not challenge the correctness of that acceptance, and indeed, provided information in respect of how that document was obtained, which led to – I'll withdraw that.

   The information about how that document was obtained was in line with not being able to be properly satisfied that it was a genuine document.  The applicant's evidence was that he contacted somebody deemed a fixer, that this fixer was referred to him by a friend; that fixer was met outside the local taxi and bus station, and that person, that fixer, went into the relevant department and spoke to another friend in order to obtain the driver's licence, and was done so, because that's – you can do that more easily than trying to do it yourself.  The applicant's evidence himself, when asked a question by Mr Pike, was in Afghanistan, you need to bribe people to obtain documents, otherwise, in his words, "they won't listen to you."

   Now, fairly, I think the applicant's – well, it would be my submission that the applicant's evidence was somewhat evasive, in respect of what actually occurred.  But, ultimately, we say the position seems to be that the applicant was aware that he needed to bribe someone in order to get this driver's licence efficiently.  He was aware that there were people you could go to.  He asked someone, he went to that person, that person went through and ultimately was provided with a driver's licence, one that he used, and one that he presented, which was found to be counterfeit.

   In those circumstances, it's no surprise that it was a counterfeit document, and that leads to a number of issues.  The first is in respect of good character, we simply say that it's not consistent with Australian values of good character, on the Australian instructions in respect of good character, to obtain documents through these sorts of unofficial, or bribed means, in order – simply because it's easier that way.  Irrespective of whether or not that may be the reality on the ground in various countries, that's not a – that's not consistent with Australian view of good character, and it's certainly not consistent to provide a document to the Department without informing the Department that that is how it was obtained.

   It would be another thing entirely if that document had been provided, with a statement saying, "Look, this is how you get driver's licences in Afghanistan, this is what I did.  I believe it's genuine, I've used it consistently, this is how we all do it."  But the Department has that, is armed with the knowledge that that is a document that has been obtained in a certain way, and that is not the case to [JLKJ].  He didn't tell the Department that, he just simply provided a document.

   It's submitted that he did – in doing so, if it was based – it is evidence that he believed it was genuine, that may well be the case.  Equally, it may be the case that he got away with it so long that perhaps he suspected the Australian officials would not suspect that it was not genuine.  We don't know.  You're probably not in a position to find that.  But what you do have before you is a counterfeit document.

   Now, that also, apart from the fact that the means of obtaining that document cast aspersions on – or cast doubts as to whether or not the applicant meets the good character requirement at this point in time, it also, obviously, casts doubt on his assertion as to his identity.  Most obviously, at the risk of stating the bleeding obvious, the document itself could not be relied on to establish the applicant's identity.

   But it also, to use a much overused word in migration jurisprudence, poisons the well.  I'm not armed with the correct citation, but I think it's S10 2002 where that expression first found favour with the High Court, that if a document is found to be fraudulent, then that may poison the well in respect of other assertions, and other documents, and that's     

   MEMBER:  That's the critical point.

   MR GERRARD:  That is the critical point.  How can you be confident of anything else that is submitted, when you know that this document, a critical document, is counterfeit, and not just that it's counterfeit, but it was obtained in the way it was obtained.  That's the critical point.  Because other documents have been submitted, evidence of life story has been submitted, but it all has to be viewed through the prism that the one thing you do note, the one thing you can be sure about, is that there is a non-genuine document that has been provided, and admissions as to how it was obtained, the realities on the ground, these all flowed after it came to light that it was a counterfeit document.

   MEMBER:  Yes.

   MR GERRARD:  Now, as the Tribunal – that is, the line in the sand for the respondent.  We can't go any further from that, and in circumstances where, as the Tribunal knows, an applicant – there's no prohibition on the number of times and applicant can provide – can apply for Australian citizenship, knowing the problems that are with this application, it's open to the applicant to obtain further evidence.  To obtain further evidence in respect of the tazkera [sic].  To have that properly assessed.  To obtain further evidence in respect of his penal certificates.

   Now, I take what Mr Pike has been said, and I take what the Tribunal has been said.  The respondent's position on that is simply the same as his (indistinct).  It doesn't – the failure to provide an oversea penal certificate does not mandate the finding that a person is not of good character, but it simply means that you're not in a position to be confident of the finding that a person is of good character.  You can't make that positive finding.

   MEMBER:  I can – I can make it for Australia.

   MR GERRARD:  Yes.

   MEMBER:  I can certainly make it for this country and the time he's been here.

   MR GERRARD:  But the point being, in that respect, that there'll be arguments to be had if there wasn't this problem with the document.  I don't think there's any point in wasting everyone's time by going backwards and forwards about the nuances of that.  Save to say, that in any future application, an overseas – a cleared overseas penal certificate adds weight to the fact that an applicant is of good character.  It would add weight to an assertion that perhaps this was the only incident of poor judgment and poor character.

   We don't think the Tribunal has to make a finding that the applicant knowingly obtained a non-genuine document, but what we do say is that the tribunal has, before it, evidence to say that the applicant knowingly engaged in a process to circumvent the usual process in order to obtain the document.  That is sufficient, at this – to make a finding that the applicant does not meet the good character test at this point in time, and as the Tribunal is aware, that findings of good character at a certain point in time, do not mandate a future finding of good character where time has passed, and an applicant can demonstrate an acceptance and a following of Australian norms and values, and can provide all the objective evidence.

   But as I said, I keep coming – apologies for being circular, but we come back to the critical point.  If counterfeit document was provided, it does cast a shadow over everything else.  The applicant can make an application in the future.  At this point, we say the Tribunal cannot be satisfied as to identity, and must have doubts as to character.  Unless the Tribunal has any questions, those are my submissions.

   MEMBER:  Well, I don't think – once I determine character, I won't get to look at identity anyway.

   MR GERRARD:  No.

   MEMBER:  because one flows into the other.

   MR GERRARD:  I think this, in that regard, would have similarities to the matter of Al Tameme, which is a matter – a different type of matter, but it was a matter where the Tribunal was satisfied as to identity, but was not satisfied as to character, because of the manner in which that particular applicant obtained, in that case, a change of name certificate. (Transcript, pp 28-32)

   CONSIDERATION

1. In this application the Tribunal is required to be satisfied of the Applicant’s identity and character, within the meaning and for the purposes of s 21(2)(h) and s 24(3) of the Citizenship Act.

2. With regards to the effective determination of ‘identity’, the Tribunal is informed by the Attorney-General’s Department’s National Identity Proofing Guidelines (the Guidelines), which are in turn reflected in the Policy.  At section 2.1.1, the Guidelines observe that a person’s identity is not a fixed concept and is highly dependent on context.

3. The Tribunal notes the Respondent’s concern that the Applicant has shown a disregard to a number of requests to provide documents that might assist in determining the identity of the Applicant. In addition the Respondent has uncovered that the Afghanistan driver’s licence provided by the Applicant is counterfeit.

4. The Applicant claims in his statutory declaration (A3) that he always believed his driver’s licence to be genuine and has had no reason to believe it was not.

5. The Tribunal is cognisant of the commentary in Dhayakpa v Minister for Immigration and Border Protection (2015) 148 ALD 162, 117:

   Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society.  The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity.  I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected.  The question here is whether the identity can be established to the satisfaction of the Tribunal.

6. The Tribunal accepts a Certificate of Australian Citizenship is a legal document of considerable significance (Beyan v Minister for Immigration and Citizenship [2015] AATA 256, at [38]).

7. In CDNB and Minister for Immigration and Border Protection [2018] AATA 757 the Tribunal considered it relevant to the assessment of identity to examine whether the applicant had portrayed a consistent life story. Specifically the Tribunal found that (at [92]) ‘… there was a level of consistency in relation to names, date of birth and… ethnicity...’  The Tribunal observed similarly in the present application a consistency in relation to names, date of birth, ethnicity and also personal history.

8. The Tribunal is concerned by the DFAT Country Information Report – Afghanistan (the Country information) which outlines that fraud is a major issue for authorities in Afghanistan. It states:

   Document fraud is a major issue in Afghanistan. Because the process for obtaining some documents is decentralised to the provincial level, and because the documentation itself generally does not contain robust security features, the system is vulnerable to fraud. Genuine documents can be issued on the basis of false information, with supporting forms of documentation such as school, academic, or banking records easily forged. This is particularly problematic in the case of taskiras given they are the primary document used to obtain other forms of identification. There is a risk that genuine, but fraudulently obtained, taskiras can be used to obtain passports. As noted in (‘National Identity Cards (Taskira)’), the government is in the process of introducing a new version of the taskira with additional security features, which should help in mitigating the risk of fraud. However, there is likely to be a significant time lag between the introduction of the new taskira and its widespread implementation.

9. The Tribunal is concerned that as a result of the Applicant failing to comply with legitimate requests from the Department on at least six occasions, the Applicant displayed a cavalier approach to these requests and in some cases refused to comply for his own reasons. This attitude generates doubts in the mind of the Tribunal as to whether the Applicant knew all along that his documentation failed the integrity test.

10. The Tribunal notes the Applicant has failed to produce an overseas penal clearance from Pakistan, however is satisfied with his explanation. Chapter 11 of the Policy states (R1, T5, 86-98):

    Decision maker can request an overseas penal clearance

    If the decision maker considers it relevant to the assessment of an applicant’s claims of good character, they can request an overseas penal clearance certificate irrespective of the amount of time a person has spent overseas, or the period of time spent within a country.

    Decision makers are strongly encouraged to request overseas penal clearances for a period of longer than 10 years if an applicant for descent is older than 28, and therefore has an adult period of life not covered by the 10 year time period set out on the application forms. Decision makers should consider:

    ·     the age of the applicant

    ·     what period of the applicant's life is not covered by the 10 year clearance (e.g. the 50- year-old applicant would only have time between 40-50 covered by the 10 year period, however could have committed offences when aged between 18-39) and

    ·     whether they have spent any time in Australia or whether this is the first time the applicant has had any contact with the department.

11. The Tribunal is also mindful of the case Zheng v Minister for Immigration and Citizenship [2011] AATA 304 (at [120]) in which Deputy President S A Forgie addressed the issue of community standards:

    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. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character. Doing good works and acts of kindness may be another. How a person behaves when trouble finds them or they are confronted by situations that make them uncomfortable may be yet another. The ways are not finite.

12. Whilst the Tribunal accepts that the Applicant has attempted to explain his inaction through statutory declarations, the Tribunal is mindful this is well after initial requests. Such explanations should have been addressed a lot earlier on, in order to give the Tribunal confidence as to the reasons for not providing requisite documentation.

13. The Tribunal is also required in this application to determine whether at the time of the decision to refuse his citizenship application the Applicant was of good character.

14. The Tribunal is very concerned over the method of how the Applicant secured his Afghanistan driver’s licence. Whilst it might well be explained away as normal practice in Afghanistan, it gives the Tribunal no confidence as to the integrity of his other documents in terms of the information they rely on. Like the Respondent, the Tribunal has concerns that it took the Applicant until after the examination of his driver’s licence to explain the method by which he obtained it.

15. Ultimately the process of assessing citizenship applications relies on the provision of documentation of the highest integrity to government officials.

16. The Applicant states in his written evidence that:

    I am aware that it is common practice in Afghanistan to obtain a driver’s licence in this manner. I understand that the fixer goes to a friend inside the Traffic Management Department in Ghazni much more easily than going into the Department yourself (A3).

17. The Tribunal finds that the Applicant knew the process by which he obtained his driver’s licence clearly implied that this was a way of getting around the system and with that came the risk that the document might well not be genuine. However it also recognises this approach might well be etched into the social and political fabric of Afghanistan gleaned from his evidence and the Country Information.

18. The primary contention before this Tribunal in summary is whether the evidence before the Tribunal implies that the Applicant, by procuring and providing a bogus document constitutes evidence of deceptive and fraudulent conduct which is not in line with community standards.

19. The Tribunal also has to determine whether there are any mitigating circumstances or explanation provided by the Applicant which might address those concerns.

20. There is no doubt on the basis of the evidence before it (R2) that the Tribunal finds the Applicant produced a non-genuine Afghanistan driver’s licence.

21. The Tribunal notes the case of Nguyen v Minister for Immigration and Border Protection [2018] AATA 1082 at [82–84]:

    82Citizenship 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.

    83 Citizenship cannot be awarded on the basis of false statements.  There are no excuses for making false statements in this regard.

    84Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others.  Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.

22. The Tribunal is equally guided by the comments of Deputy President McMahon in Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at [35], which are appropriate here:

    ...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 ... Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.

23. The Tribunal determines at the very least the Applicant should have told the Department by what method he got the licence. Obtaining such a document by circumventing proper process can result in risky outcomes. In this case it has resulted in a bogus document. The Tribunal agrees with the Respondent that the method by which this document was procured showed a lack of judgement on the part of the Applicant and fails the character test of this application.

24. This finding by the Tribunal does not mean the Applicant is a person of bad character, just that on this occasion he made a serious error of judgement with consequences that flow from that error. The consequences have resulted in the Tribunal having a lack of confidence as to the credibility of other documents that might be submitted.

    DECISION

25. In view of the above reasons, the Tribunal affirms the decision of the Minister’s delegate.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

....................................[sgd]....................................

Associate

Dated: 17 April 2019

Date(s) of hearing:	April 2019
Advocate for the Applicant:	Mr B Pike
Representative for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitors