Kasirye and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 790
•20 April 2022
Kasirye and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 790 (20 April 2022)
Division:GENERAL DIVISION
File Number: 2021/0493
Re:Ronnie Charles Kasirye
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:20 April 2022
Place:Perth
The decision of a delegate of the Respondent dated 27 January 2021, to cancel the approval of the Applicant’s application for citizenship by conferral under s 25(2)(b)(iii) of the Australian Citizenship Act 2007 (Cth) is affirmed.
..............[Sgd]..........................................................
L M Gallagher, Member
CATCHWORDS
CITIZENSHIP – cancellation of the approval of the Applicant’s application for Australian citizenship by conferral – whether Tribunal satisfied Applicant was not of good character – discrepancies in the information the Applicant provided for his protection visa and citizenship application – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21, 21(1), 21(2), 21(2)(h), 24, 24(1), 24(1A), 25, 25(1), 25(1)(a), 25(2)(b)(iii), 52(1)(c)
CASES
Bashi and Minister for Immigration and Border Protection [2016] AATA 453
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
BWGZ and Minister for Home Affairs [2019] AATA 1645
Fang and Minister for Immigration and Border Protection [2018] AATA 3686
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy (1 June 2016) – Chapter 10
Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019, amended 26 February 2021) – CPI 15, items 11.1, 14.2
REASONS FOR DECISION
L M Gallagher, Member
20 April 2022
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent dated 27 January 2021,[1] to cancel the approval of the Applicant’s application for citizenship by conferral under s 25(2)(b)(iii) of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).
[1]R1, T40, pp 407-420.
The basis for the refusal was that the delegate was satisfied that at the time of the decision the Applicant was not of good character.[2]
[2]R1, T40, p 420.
The application for review of the Reviewable Decision is made in accordance with s 52(1)(c) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision under s 25 of the Act.
BACKGROUND
The Applicant claims to be a 47-year-old citizen of Uganda.[3]
[3]R1, T4, p 11.
On 22 August 2003, the Applicant applied for a Temporary Business Entry (Class UC) (Subclass 456) visa.[4] This application was refused on 27 August 2003.[5]
[4]R1, T40, p 407.
[5]R1, T40, p 407.
On 3 September 2008, the Applicant again applied for a Temporary Business Entry (Class UC) (Subclass 456) visa.[6] In this application, the Applicant claimed his intended principal business activity in Australia was to “run the Melbourne Marathon”[7] and that he wished to visit Australia from 9 October 2008 to 14 October 2008.[8] This application was refused on 15 September 2008.[9]
[6]R1, T4; T40, p 407.
[7]R1, T4, p 12.
[8]R1, T4, p 11.
[9]R1, T40, p 407.
On 26 September 2008, the Applicant again applied for a Temporary Business Entry (Class UC) (Subclass 456) visa.[10] In this application, the Applicant claimed his intended principal business activity in Australia was “running the Melbourne marathon and come back home”[11] and that he wished to visit Australia from 9 October 2008 to 14 October 2008.[12] This application was refused on 8 October 2008.[13]
[10]R1, T5; T40 p 407.
[11]R1, T5, p 18.
[12]R1, T5, p 17.
[13]R1, T5, p 17; T40, p 407.
On 29 November 2012, the Applicant again applied for a Temporary Business Entry (Class UC) (Subclass 456) visa.[14] This application was granted on 3 December 2012.[15]
[14]R1, T40, p 407.
[15]R1, T40, p 407.
The Applicant first arrived in Australia on 8 December 2012 as the holder of the Temporary Business Entry (Class UC) (Subclass 456) visa that was granted on 3 December 2012.[16]
[16]R1, T40, p 408.
On 18 December 2012, the Applicant applied for a Protection (Class XA) (Subclass 866) visa.[17] On his application form, the Applicant stated:[18]
I fled my country because I fear harm/Persecution [sic] because of my sexual orientation. (Homosexual relationship)
Having been a member of a particular social group (Homosexual) and due to the political opinion of the government about we the Homosexuals.
I came to Australia because I was being very uncomfortable back home and I had been tortured before…
…In 2005 I asked for a job and I was told am not married no job. This forced me to get
marriedto some one [sic]…This did not stop me from my ways of life…
…[the Applicant’s wife caught him out] making a sodomic act.[19]
...I knew that it [being homosexual] will cause me problems rumours started moving around the village why my wife had gone; saying I was so silly to be a homosexual and how I sleep with a fellow man.
[17]R1, T6-T8.
[18]R1, T7, pp 45-49.
[19]The Applicant gave evidence that his wife outed him as homosexual when she caught him making a sodomic act which led to him being threatened by his wife, her family and his own family (R1, T8, p 64, 66-68).
On 21 February 2013, the Applicant’s application for a Protection (Class XA) (Subclass 866) visa was granted.[20]
[20]R1, T40, p 408.
On 1 July 2014, the Applicant sponsored three applications for a Child (Class AH) (Subclass 101) visa lodged by three people he claimed were his children, namely:[21]
(a)[DN] (born 19 September 2007).[22] DN’s application was refused on 29 March 2016;
(b)[DK] (born 4 April 2010).[23] DK’s application was granted on 28 August 2015; and
(c)[RK] (born 5 September 2012).[24] RK’s application was granted on 28 August 2015.
[21]R1, T40, p 408.
[22]R1, ST10.
[23]R2, ST9.
[24]R2, ST8.
On 2 February 2017, the Applicant applied to be conferred with Australian citizenship.[25] In the Applicant’s citizenship application:
(a)He listed [J] (born 2 August 1985) as his “spouse.”[26]
(b)He included a marriage certificate which recorded that he and J had been married in Victoria on 4 March 2016.[27]
(c)He provided a letter dated 30 January 2017 by which he requested a citizenship ceremony to enable him to obtain an Australian passport so that he could visit his “very sick” daughter before she dies.[28]
[25]R1, T9; T40 p 408. The Applicant’s application for citizenship includes applications for RK and DK (R1, T9, p 74), which do not form part of the present application before the Tribunal.
[26]R1, T9, p 80.
[27]R1, T9, p 101.
[28]R1, T9, p 109.
On 28 March 2017, the Applicant was the sponsor for an application for a combined temporary and permanent partner visa (Class UK) (Subclass 820) and (Class BS) (Subclass 801) lodged by J.[29] On 23 October 2018, J was granted the temporary (Class UK) (Subclass 820) visa[30] and on 20 December 2019 she was granted the permanent (Class BS) (Subclass 801) visa.[31]
[29]R1, T40, p 408; R2, ST12 and ST13.
[30]R1, T40, p 408; R2, ST14 and R2, ST15.
[31]R1, T40, p 408.
On 4 September 2017, the Applicant was again the sponsor for another application for a Child (Class AH) (Subclass 101) visa, lodged by DN.[32] On 11 June 2018, this application was refused.[33]
[32]R1, T40, p 408.
[33]R1, T40, p 408.
On 11 June 2018, the Applicant’s application for citizenship was approved.[34]
[34]R1, T40, p 408.
On 5 September 2018 and 6 September 2018, the Applicant sent a number of emails to the Department of Home Affairs (the Department) requesting a “quick” citizenship ceremony to enable him to obtain an Australian passport to visit his only surviving parent who was ill.[35] On 11 September 2018, this application was refused.[36]
[35]R1, T40, p 408; R1, T13 and T14.
[36]R1, T16.
On 17 April 2019, the Department sent the Applicant a Notice of Intention to Consider Cancellation (NOICC) of his Protection (Class XA) (Subclass 866) visa under s 109 of the Migration Act 1958 (Cth) (Migration Act).[37] Between 30 April 2019 and 27 October 2019, the Applicant provided a number of responses to the NOICC,[38] including a statutory declaration dated 29 April 2019.[39]
[37]R1, T40, p 408; R2, ST16.
[38]R2, ST17, p 146.
[39]R1, T21. This statutory declaration was received by the Department on 3 May 2019.
On 27 November 2019, a delegate of the Department decided not to cancel the Applicant’s Protection (Class XA) (Subclass 866) visa under s 109 of the Migration Act.[40] The delegate reached her decision notwithstanding the fact that she was satisfied that the Applicant had provided incorrect information in respect of his protection visa application.[41]
[40]R1, T40, p 408; R2, ST17.
[41]R2, ST17, p 146.
Following the delegate’s decision dated 27 November 2019, the Department became aware of further discrepancies in the information the Applicant has provided as part of his protection visa and citizenship applications, and of occasions where he appeared to be dishonest in his dealings with the Department.[42]
[42]R1, T40, p 408
On 10 September 2020, the Department sent the Applicant a Notice of Intention to Consider Cancellation of Approval (NOICCA).[43] In the NOICCA, the Applicant was invited to comment on inconsistent information he had provided in relation to the following categories:[44]
(a)Inconsistent declarations about his parents;
(b)Inconsistent information about his marital status;
(c)Inconsistent declarations about his children;
(d)Inconsistent information about his plan to visit Uganda; and
(e)Inconsistent declaration about his name and date of birth for a USA visa application (and his failure to declare that visa application in his protection visa application).
[43]R1, T40, p 408; R1, T25
[44]R1, T25.
On 29 September 2020, the Applicant responded to the NOICCA.[45]
[45]R1, T26-T29. See in particular the Applicant’s statutory declaration dated 29 September 2020 (R1, T29), which refers to the categories of inconsistent information at [21] above at T29, p 333–340, and further responses dated 17 November 2020 (R1, T30), 16 December 2020 (R1, T31) and 21 December 2020 (R1, T32).
On 27 January 2021, the delegate made the Reviewable Decision.[46]
[46]See [1] above.
On 29 January 2021, the Applicant applied to the Tribunal seeking review of the Reviewable Decision.[47] In his application, the Applicant claimed the Reviewable Decision was wrong for the following reasons:[48]
The decision-maker did not weigh up all the factors relevant to the assessment of my character as an applicant including information that would support the decision maker reaching a positive conclusion about my character.
I believe my application was not viewed in a holistic way so as [sic] include my moral qualities through out [sic] the time when [sic] held a visa and during the time of [sic] citizenship application was logged and processed.
Information such as character references, provided by people who know me well was disregarded and not considered.
The decision maker failed to guard against making enormous assumptions regarding the death of my parents, my birth certificate etc.
The decision maker ignored the fact that mistakes were made, acknowledged fault and indicated attempts and strived to improve, were [sic] possible collected the mistakes like processing a birth certificate. I believe that basing [sic] on the evidence of my many referees i [sic] ably demonstrated the good moral qualities to enable the decision maker [sic] make a finding of good character which unfortunately was not done.
[47]R1, T2.
[48]R1, T2, p 8.
LEGISLATIVE AND POLICY FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Section 24(1) of the Act states that ‘[i]f a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen’. Where a person is not eligible to become an Australian citizen under s 21(2), the Minister must not approve the person becoming an Australian citizen.[49]
[49]Section 24(1A) of the Act.
A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Act, as follows:[50]
[50]In the present matter, the Respondent’s delegate approved the Applicant’s application under s 24(1) of the Act on the basis that he met s 21(2) of the Act.
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
Section 25(1) of the Act provides that the Minister (or the Tribunal standing in the Minister’s shoes on review of a decision of the Minister’s delegate) may cancel approval given to a person under s 24 of the Act, if (and relevantly to the present matter), two conditions are met:
(a)The person has not yet become an Australian citizen under the Act[51]; and
(b)The Minister is satisfied, at the time Minister proposes to cancel the approval, that the person is not of good character.[52]
[51]s 25(1)(a) of the Act.
[52]s 25(2)(b)(iii) of the Act. See Bashi and Minister for Immigration and Border Protection [2016] AATA 453 [5] (Deputy President Alpins) and BWGZ and Minister for Home Affairs [2019] AATA 1645 [92]-[93] (Senior Member Puplick). The Tribunal emphasises that this is a different test for initial approval of citizenship in s 21(2)(h) of the Act, which requires a decision-maker to be positively satisfied that a person is of good character.
The meaning of good character
The term ‘good character’ is not defined in the Act. The Tribunal is however assisted by the Australian Citizenship Policy (1 June 2016) (the Policy) and the Revised Citizenship Procedural Instructions (1 January 2019) (the CPIs).[53]
[53]The Revised Citizenship Procedural Instructions were published on 1 January 2019 to support the function of the Australian Citizenship Act 2007 (Cth).
As established in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[54]
[54]Drake at 645.
‘Good character’ is defined in ch 10 of the Policy:[55]
[55]The Policy pp 136–7.
“Good character” refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship …
The term “good character” is not defined in the Act. Therefore, the Federal Court (FC) and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
In this context, “moral” does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
· characteristics which have been demonstrated over a very long period of time
· distinguishing right from wrong
· behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition 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.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
The Policy further provides that an Applicant of good character would, among other things:
· respect and abide by the law in Australia and other countries
· be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
· be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
· providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
· involvement in bogus marriage
· concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
· involvement in Centrelink or Australian Tax Office fraud
· giving false names and/or addresses to police
· not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
· not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
· not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
· not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
· not be the subject of any extradition order or other international arrest warrant
· not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
· not be the subject of any verifiable information causing character doubts.
(Emphasis added.)
Item 14.2 of CPI 15 provides the following guidance on the Tribunal task of weighing up the character decision:
· Would a person of good character have behaved the way the applicant did?
· What evidence is there to demonstrate that the applicant has upheld and obeyed the law?
· Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?
· Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?
· Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?
· Are there any other relevant factors that are relevant to an assessment of the applicant’s character?
In Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 (at [7]), the AAT said:
“a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or 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.
The CPIs set out a number of factors that may be taken into account when assessing whether an Applicant is of good character, including the Applicant’s behaviour in his or her interactions with government officials, as follows (CPI 15, Item 11.1):
The Australian community expects that persons in Australia will abide by Australian laws. This includes providing correct information when seeking a government benefit or service.
It is relevant to consider whether the applicant has been honest in dealings with the Department. Decision-makers should consider all of the applicant’s interactions with the Department, including visa and citizenship applications.
…
If the applicant has knowingly presented incorrect information or a bogus document, this may reflect on the person’s character. If the applicant presents the incorrect information or bogus document unknowingly, there would be no ground for character concern.
(Emphasis added.)
In Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
at [82]–[84], Senior Member Puplick emphasised the importance of Applicants being truthful:
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.Equally, 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 [sic] to placing themselves in the hands of deceitful third parties.
(Emphasis added and footnotes omitted.)
Further, in Fang and Minister for Immigration and Border Protection [2018]
AATA 3686 at [97], Senior Member Puplick made the following comment about the need for an Applicant to be truthful about their identity:…those, who are not citizens and who are seeking to do so, 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 – applicable indeed, equally to citizens and non-citizens alike
(Emphasis added.)
It has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character.[56]
[56]For example, Beyan v Minister for Immigration and Border Protection [2015] AATA 256.
As to referee reports (that is, character references), the Policy states:[57]
… [they] 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.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, or who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc., if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.
(Emphasis added.)
[57]The Policy p 155.
ISSUE
The issue for review is whether the Tribunal is satisfied that the Applicant is not of good character at the time it considers whether to exercise the discretion under s 25(2)(b)(iii) of the Act to cancel the approval of the Applicant’s application for Australian citizenship by conferral.[58]
[58]That is, at the time of this decision.
EVIDENCE
The matter was heard in Perth on 20 October 2021, with the parties appearing at the hearing in person.
The Applicant was self-represented. The Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers.
The Tribunal admitted the following documents into evidence at the hearing:
·Applicant’s bundle of documents, filed during 17 to 22 March 2021 (A1);
·Applicant’s bundle of documents, filed 6 April 2021 (A2);
·Applicant’s response to Respondent’s Statement of Facts, Issues and Contentions (SFIC) and further documents, filed 7 July 2021 (A3);
·Applicant’s bundle of documents, filed 11 October 2021 (A4);
·Applicant’s bundle of documents, including employment letter and DNA results for DN, filed 13 October 2021 (A5);
·Section 37 T-Documents (T1–T44), comprising 493 pages (R1);
·Supplementary T-Documents (ST1–ST20), comprising 153 pages (R2); and
·Respondent’s SFIC, dated 10 June 2021 (R3).
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Applicant’s evidence
The Applicant gave oral evidence at the hearing and was cross-examined. In addition to the Applicant’s submissions contained in exhibits A1, A2 and A3, the Applicant also filed a number of written statements and declarations that further comprise his documentary evidence in this matter. They are:
(a)Applicant’s statutory declaration, dated 29 January 2013;[59]
(b)Applicant’s statement, dated 30 January 2017;[60]
(c)Applicant’s unsworn statutory declaration, dated 29 April 2019;[61]
(d)Applicant’s unsworn and undated statutory declaration;[62]
(e)Applicant’s undated statement;[63]
(f)Applicant’s submission, dated 19 January 2021;[64] and
(g)Applicant’s statutory declaration, dated 1 July 2014.[65]
[59]R1, T8.
[60]R1, T9(p).
[61]R1, T21(a).
[62]R1, T21(f).
[63]R1, T21(aa).
[64]R1, T39(a).
[65]R2, ST11.
At the hearing, the Applicant stated:
(a)He was the eldest son of his late parents, Charles Kasirye and Diana Kasirye (nee Nasubugar) and has one biological sister, Jane.[66]
(b)When he lodged his protection visa application, he claimed that:
(i)He would suffer serious harm as a result of being homosexual; and[67]
(ii)He had been threatened by J (his wife at the time), her family and his own family.[68]
(c)His wife J now lives with him in Australia.[69]
[66]Transcript, p 16 [5]-[15].
[67]Transcript, p 16 [20]-[25].
[68]Transcript, p 16 [25]-[35].
[69]Transcript, p 16 [35]-[40].
As to how the Applicant came to sponsor his wife J on a partner visa, he said:[70]
[70]Transcript, p 16 [40]-[45]], p 17 [5]-[15].
MR BURGESS: And you sponsored her on a partner visa to come to Australia, is that correct?‑‑‑
APPLICANT: That’s not correct.
MR BURGESS: How did she end up in Australia?‑‑‑
APPLICANT: I think the department has a file of how [J] came to Australia. I was in Australia and [J] was in Uganda. Finding out that [J] was here was through the Ugandan community in Victoria where they were welcoming in all members that come in from Ugandan (indistinct) international students and all that. To my understanding [J] was sponsored by the AIDS Information Centre in some record of the department to come and study in Australia because she was working there. But it was a surprise to me and I clearly stated and elaborated in I think (indistinct) how and the reason why, how we came to unite again through members of the community. And the fact that there is a bond of the kids this involved a lot of talks from elders in our community in Victoria. And it was hard, stressful as a family we could see a couple at the face but (indistinct) remember that what I pass through as an adult was very bad when I was in Uganda. But for the good of my kids I somehow lean back (indistinct) accept it for what I pass through.
MR BURGESS: Mr Kasirye, [J] is currently on a partner visa, isn't she?‑‑‑
APPLICANT: Yes. Legally after the marriage in Australia [J] became my legally wife and it’s on that ground that I wrote and sponsored her.
(Emphasis added.)
When asked by Mr Burgess, the Applicant said that when he lodged his documents for citizenship, he knew that the Department was going to rely on them for considering his application.[71]
[71]Transcript, p 17 [35]-[40].
During cross-examination, Mr Burgess asked the Applicant a number of questions regarding the following extract from the statement he submitted with his application for citizenship:[72]
My two parent [sic] deceased in 1995 on 29th of Jan in a car accident on Masaka Road.
·Late Mr, Kasirye Charles Lwanga.
·Late Mrs: Nasubuga Diana Kasirye.
[72]See R1, T9, p 107.
The Applicant said that the persons named in the extract are in reference to his birth parents.[73]
[73]Transcript, p 18 [15]-[20].
Having been taken to the reference in the extract to the Applicant’s parents having been killed on 29 January 1995 in a car accident, the following exchange ensued:[74]
[74]Transcript, pp 19-24.
MR BURGESS: My question to you was you were lying when you said they'd both died on 29 January 1995 in a car accident, weren't you?‑‑‑
APPLICANT: They passed away but that’s not - they’re dead, so it’s a no.
MR BURGESS: Well, it’s not only not the date but they didn't die together in a car accident, did they?
MEMBER: Yes or no?‑‑‑
APPLICANT: Yes. It’s a no. I will explain it later, honourable Member, yes.
…
MR BURGESS: This is a statutory declaration that you provided in support of an application for your protection visa.[75] In that statement you say:[76]
[75]See R1, T8.
[76]R1, T8, p 59 at [3].
When I was eight years old my parents separated and I continued to live with my father. I did not see my mother again and I was always told that she passed away.
APPLICANT: ‑‑‑Yes.
ME BURGESS: Now, that’s not consistent with your parents both dying together in a car accident when you were 20 years old, is it?‑‑‑It’s not, I will explain to the honourable Member and the tribunal.
You say there:
When I was 16 years old my father was killed in a car accident.[77]
[77]R1, T8, p 59 at [5].
APPLICANT: ‑‑‑Yes.
MR BURGESS: You were 16 years old in 1991, weren't you?
APPLICANT: ‑‑‑Yes.
MR BURGESS: So it’s not the case that your father died in a car accident in 1995 either, is it?
APPLICANT: ‑‑‑No. I'll explain that.
MR BURGESS: Mr Kasirye, one moment. Can I take you to page 109 of that bundle? This is a request you made to the department for an early citizenship test and ceremony to make a pledge. In that you say you were:[78]
[78]R1, T9, p 109.
Planning to go to Uganda to visit my beloved daughter who is very sick and suffering from abdominal pain before she dies.
Who was the daughter that you were referring to there?
APPLICANT: ‑‑‑[DN].
MR BURGESS: It’s the case, isn't it, that in September of 2017 you attempted to sponsor [DN] to come to Australia?
APPLICANT: ‑‑‑Yes.
MR BURGESS: And I'd put it to you that your daughter [DN] didn't die?
APPLICANT: ‑‑‑She’s all right.
MR BURGESS: And that she wasn't dying when you wrote this letter to the department?
APPLICANT: ‑‑‑She was seriously ill.
MR BURGESS: In January of 2019 you again requested an expedited ceremony so that you could obtain an Australian passport to enter Uganda to visit your sick parents that you said were soon passing away.[79] That’s at page 143.
[79] R1, T19, p 143.
It’s the case, isn't it, that your parents at this time weren't soon to be passing away?
APPLICANT: ‑‑‑I don't get that.
MR BURGESS: Well, you’ve told the tribunal that your parents had already passed away. Again, this letter is a lie, isn't it, where you say:
My sick parents are soon passing away.
APPLICANT: ‑‑‑I was referring to the (indistinct) [heir of] my parents.
MR BURGESS: Well, it’s the case, isn't it, Mr Kasirye, that under Ugandan law the heir of your parents would usually be their eldest son, wouldn't it?
…
That’s the case, isn't it?
APPLICANT: ‑‑‑Usually...
…
MEMBER: … [T]he heir is one person?
APPLICANT: ‑‑‑The heir is one person.
MEMBER: Here you’ve referred to sick parents. …
APPLICANT: ‑‑‑Yes.
MEMBER:What does the reference to sick parents mean, if the heir is one person?
APPLICANT: ‑‑‑I referred to parents because a heir takes over the responsibility of your parent only that, takes up that responsibility.
MEMBER: But if I'm understanding correctly and you say:
This will also able [sic] me go and see my only daughter and my sick parents who are soon passing away.
So that suggests to me that’s two people but if the heir’s one person?
APPLICANT: ‑‑‑Yes, the heir is one person. Maybe it’s my wording but it’s one person that I was referring to the heir to my parents. Heir to my parent, sorry.
MR BURGESS: Mr Kasirye, you were asked for evidence about your sick parents, weren't you?
APPLICANT: ‑‑‑Yes, I was.
MR BURGESS: And you provided evidence of your aunty, didn't you, to the department?
APPLICANT: ‑‑‑Yes, I did
...
MR BURGESS: What information did you intend to provide to the department?‑‑‑
…
…[W]hat information did you ask your family to provide you with? Whose information?
...
The medical information for who?
APPLICANT: ‑‑‑For the heir who was sick…
MEMBER: So you sent it on without looking at it?
APPLICANT: ‑‑‑Yes, I didn't really look. As soon as I even got that I just download it for attach that [sic] and then wrote an email and forward it…
MR BURGESS: Well, you requested information from your family about both your uncle and your aunty, didn't you?
APPLICANT: ‑‑‑Yes, I did.
…
MR BURGESS: Well, it doesn't make sense, does it, that you asked for records for both your aunty and your uncle, if you are only referring to a single heir?
APPLICANT: ‑‑‑Well, like I just said, my (indistinct) information for the heir.
MEMBER:…So why did you ask for information from two people, one of whom was not the heir?
APPLICANT: ‑‑‑I will take responsibility - - -
MEMBER:… why did you ask for information about two people.
By your own evidence… you needed it from one person, that’s if we were to accept the explanation you give about your referring to parents as being the heir and not your actual biological parents mother and father?
APPLICANT: ‑‑‑Yes, I only ask for information for one…
MEMBER:[A]re you saying that what Mr Burgess is saying is wrong, that you didn't request information from the uncle and the aunty?
APPLICANT: ‑‑‑No, I didn't request information for two.
…
I don't recall [doing] that.
MR BURGESS: Mr Kasirye, you just said before that firstly, you said you asked for information for two people and then you changed that to one. And then you said you asked for one person’s information but you got two people’s information. If you got two people’s information back why did you only submit your aunty’s information?‑‑‑
MEMBER:…[I]f it’s your evidence now that you received two lots of information one … about your uncle and one about your aunty, if the heir is the uncle then why did you send the aunty’s information at all?
APPLICANT: …That was a mistake.
(Emphasis added.)
When asked by Mr Burgess, the Applicant said that throughout 2016 to 2020 he was sending money to Australia from Uganda to someone named “Charles Kasirye,” however this person was not his biological father.[80]
[80]Transcript p 24 [30]-[35].
When taken to the page of his citizenship application where he listed the name of his father and mother as “Charles Lwanga Kasirye” and “Madina Nasubuga” respectively,[81] and indicated that his mother (but not his father) was deceased, the Applicant disagreed with the proposition that his father was still alive at the time he made this application in 2017.[82]
[81]R1, T9, p 79.
[82]Transcript p 25 [5]-[10].
As to why he applied to travel to Uganda in 2019, the Applicant said a family elder from his father’s side of the family, to whom the Applicant refers as a “parent” had information he wanted to pass on to the Applicant before he passed away.[83]
[83]Transcript p 25 [15].
When asked why he had been prepared to travel to Uganda to obtain this information, Uganda being the country from which he had feared persecution and applied for a protection visa,[84] the Applicant accepted that when he applied for a protection visa he stated that returning to Uganda would be akin to signing a death certificate.[85] The Applicant, however, did not accept that this statement was false.[86]
[84]Transcript p 25 [45]; p 26 [5]
[85]Transcript p 26 [5].
[86]Transcript p 26 [10].
The Applicant did not know what the information from the elder was about or why the elder wished to pass this information on to him,[87] but had been prepared to travel regardless:[88]
…when a loved one is yearning for you in the last days what comes up to your mind is to really fulfil what the person is yearning for. And…if I travel to Uganda … on an Australian passport the risk of harm were minimal or very negligible because I wouldn't have been a citizen of Uganda.
[87]Transcript p 25 [10]-[35].
[88]Transcript p 26 [15]-[20].
When it was put to the Applicant that his protection claim was made on the basis that he had been threatened by his wife, her family and his own family, rather than on the basis that he was going to be killed by the government,[89] he said that at the time he applied for protection his family was trying to carry out new Ugandan laws regarding homosexuality that were spreading through the community.[90] The Applicant said that “the family would do what we call mob justice or hand you over.”[91]
[89]Transcript p 26 [20]-[25].
[90]Transcript p 26 [20]-[35].
[91]Transcript p 27 [5].
As to Mr Burgess’ proposition that the Applicant’s family would hand out “mob justice” regardless of whether he had returned as an Australian citizen or not, the Applicant said it would have been very different if he had been travelling as an Australian and that he “would have a protection.”[92]
[92]Transcript p 27 [10]-[20].
The Applicant said that he had previously married [S] in 2002.[93] The Applicant said that when he provided a marriage certificate to the Department for his current wife J it made no mention of him being previously married.[94] The Applicant gave the following explanation:[95]
MR BURGESS: When you provided a marriage certificate for your current wife to the department it made no mention of you being previously married, did it?
APPLICANT: ‑‑‑It didn't.
MR BURGESS: And that’s because it asked the question about whether you had been previously married and you'd said “No”?
APPLICANT: ‑‑‑I said I forwarded that to the marriage celebrant and it was only on his guidance, like I explained in a (indistinct), like I don't know the - I didn't know the process of that so everything I forwarded to the marriage celebrant who said “You are not married in Australia. We’ll give 30 days, 28 or 30 days. If nobody comes up we’ll carry on with this function”.
(Emphasis added.)
[93]Transcript p 28 [5].
[94]Transcript p 28 [10]-[15]. See R1, T9(j), p 101.
[95]Transcript p 28 [5]-[15].
When asked, the Applicant accepted that he never disclosed his marriage to S in his protection visa application.[96] However, the Applicant did not accept that the reason for not disclosing this marriage was because it may have undermined his claims that he is homosexual.[97]
[96]Transcript p 28 [30].
[97]Transcript p 28 [35].
As to his having previously been refused travel to the United States[98], the Applicant said:[99]
(a)He had been attempting to enter the United States to take up an athletic scholarship.
(b)He was refused entry on the basis that he had lied about his age on the application, stating he was born in 1985, being 10 years later than his actual birth year.
(c)He was not sure whether he provided a fraudulent academic transcript in support of his United States visa application.
(d)At the time he lodged his visa applications in Australia he had already been refused entry into the United States. He did not disclose this to the Australian authorities in his visa applications.
(e)When his United States visa was refused, he was also excluded from applying for a United States visa for a 10-year period, although he did not know this at the time.
[98]The Applicant accepted that this was the case: Transcript p 28 [40].
[99]Transcript p 28 [40]-[45]; p 29 [5]-[40].
The Applicant accepted that his first few visa applications in Australia were refused,[100] on the basis that he was not believed to be a genuine temporary entrant.[101]
[100]Transcript p 29 [40].
[101]Transcript p 29 [45].
As to his failure to disclose his unsuccessful United States visa application in his subsequent Australian visa application:[102]
MR BURGESS: When you were applying for those visas to Australia you knew that having been rejected from the US for providing fraudulent documents and lying on the visa application would have an adverse impact on you getting a visa in Australia as well, didn't you?
APPLICANT: ‑‑‑No, I didn't.
MR BURGESS: I put it to you, Mr Kasirye, that you did know that you had been refused a visa and you purposefully failed to disclose that information in order to bolster your chances of obtaining an Australian visa?
APPLICANT: ‑‑‑No.
(Emphasis added.)
[102]Transcript p 30 [5]-[10].
In answers to questions asked by the Tribunal, the Applicant further explained a number of aspects of his evidence given during cross-examination, as follows:
1Evidence that his parents had passed away in a car accident in 1995[103]
[103]Transcript pp 31-33.
APPLICANT: I want to put it on record that my parents or my father passed away on 10 May 1991 and I want to clarify why I said my parents. My father was with the one I would call my stepmum at this time. That was not my biological mother. That was a stepmum of mine. My father [sic] last funeral rites were on 29 January 1995, which was a Sunday. In writing down, I wrote down the date of the last funeral rites, as well as the date when my father passed away.
…
MEMBER:Why didn’t you write then that your father was deceased on 10 May 1991, his last rites taking place on 29 January 1995?
…
MEMBER: So, you are saying, you did it in error?
APPLICANT: Yes, Member. This is just in line, like um the death only, two affidavit [sic] for the elder of the clan, elder, and the village chairman. If we allow me to refer to the two affidavit's and there - - -
MEMBER:So, the evidence that you gave to Mr Burgess when he was asking you about this letter, you said that you meant this reference to (indistinct) to be your mother. But now you are saying it's your stepmother.
APPLICANT: No. This is what I'm saying, that, my mother was (indistinct) her (indistinct) was not her name. That’s why in the beginning you told me not to - I will get to explain this, that’s why I am trying to put it clear. My stepmum, I didn’t mention the name of my stepmum in my applications. I just said my parents.
MEMBER:But I think the part of this letter what actually needs explanation was what you've said about the date of your father's death, is earlier than the date you've listed and that it wasn’t the date that he was deceased, it was the date of his last rites. But then were you meaning to say that the date of Diana's last rites were [sic] the same day?
APPLICANT: No, the date of the last funeral rites is the 29 January 1995.
MEMBER:Yes, but you are saying that’s in relation to your father.
So, in your submission that explains that away? But what about Diana.APPLICANT: No, like Diana, my mum passed away in '83. My mother passed away, she was giving birth in (indistinct), when I was eight years old.
MEMBER:So then why put her date of having deceased as being the same, which is not the actual date your father passed away, but the date of the last rites. Because you've got them listed both under the same date.
APPLICANT: No, that one - that is, - - -
MEMBER: Another mistake?
APPLICANT: That's um, yes stepmum that I was trying to refer to on that date, although I didn’t mention the name of the stepmum, and I mentioned the name of my mother.
MEMBER:Okay. So, really then, that 29 January 1995 date has nothing to do with Diana.
APPLICANT: Nothing to do with my mother.
MEMBER:So, the fact that it's listed under your father as being a part of that date as well is just another mistake.
APPLICANT: Another mistake.
MEMBER: Another mistake.
(Emphasis added.)
2Evidence regarding his plans to travel to see his daughter and parents[104]
[104]Transcript pp 38-41.
MEMBER:…I was a little bit confused at the point where we left off at the end of the questioning with Mr Burgess about the sentence there,
This will also enable me [sic] go and see my only daughter and my sick parents who are soon passing away.
About where we actually go [sic] to. What your final position was about what that actually meant. So, I had that - so there was some evidence given there from the questions from Mr Burgess. So, you were saying that your sick parents, was really referring to the heir, which in the circumstances of your relative who's passed away was a male heir. So, when a male passes away there's a male heir and when the female passes away there's a female heir.
And then we were talking about - we had a discussion about the information that was ultimately provided to the department in response to the departments [sic] request for information about the sick parents. You said that you erroneously send sic] evidence about your aunty and that you'd requested information from your family, from your uncle and your aunty and I was a little confused, I admit about 1, why you would seek information from both the uncle and the aunty when it was the uncle, we were interested in for present purposes to respond to the departments [sic] request. That was my main part that I didn’t understand. But if you wanted to explain that to me again from the beginning, it might help me.
APPLICANT: Yes, in the communication of the heir being sick, I was told that even an aunty in Masaka was sick. So, my focus was on the heir, not on the aunty.
MEMBER:Sorry, so you were told an aunty was sick? Is this separate to - so this isn't - so this sick aunty, this is a separate situation to the heir.
APPLICANT: Yes. But giving in, in forwarding information, because the other relative one could be to also give a hand which I committed (indistinct words) On taking bills, covering power bills on the aunties side. Because I usually ask for evidence if that person is really sick. So, when they send that information, it's the same information that I forward to the department.
MEMBER:So, now you're saying… you asked for evidence from the aunty because the aunty was sick and you would only be prepared to help financially with her treatment, medical needs, if you were satisfied there was medical evidence of her condition.
APPLICANT: I usually ask for that, but yes, in this case, after the department has asked me my - - -
MEMBER:But the thing is Mr Kasirye, the problem I have with that is that if you say that you were only prepared to assist the sick aunty financially because you had documentary evidence of her medical condition. But I understand, you said to Mr Burgess just earlier that you sent that information on to the department without looking at it. But wouldn’t you have looked at it to satisfy yourself of her medical condition so that you'd send the funds. Because I thought your evidence was that you sent it on to the department without looking at it, and that was a mistake.
APPLICANT: Yes, the wrong one. No, I agree with you, Member. I didn’t look at that when I was sending it. Although after getting that information I downloaded, because I was using on my phone, I downloaded it, looked at, then I knew that oh this is information is brought in.
MEMBER: Aunty' s sick.
APPLICANT: Then, brought small one, two paragraphs to the department. I passed that. And it's up to recent when I was told with the evidence that the information - - -
MEMBER:So, I am confused. You received the information, and you said you sent it on to the department without looking at it. And then later in time, did you open it and read it and say yes, my aunty is sick I'm going to send some money.
APPLICANT: I just send a wrong - I attach a wrong document instead of forwarding the right document to the department. And there is no - - -
MEMBER:But you said that you hadn't looked at that document before you sent it. Are you saying now that you did?
You had downloaded it and picked a few paragraphs from it? What did you do?APPLICANT: I'm confused.
MEMBER:I'm confused. So, the evidence you gave to Mr Burgess, you said this evidence came to you, you - well it was your later evidence actually. First you said that you'd just received evidence from one of them. But then you said you requested information - you requested information from your family from the uncle and the aunty, although you didn’t tell Mr Burgess at the time you were explaining that, that you had a sick aunty who you were assisting financially. But you wanted to be satisfied of her condition. So, now you're saying - did you get the information from the uncle and the aunty at the same time?
APPLICANT: There were two people who sent me information. Emails with documents, both, and I got that information.
MEMBER:Okay. Put it this way. So, two people sent you information. So, for that to occur they would have come on two separate emails. So, you got one email, and then you said to Mr Burgess that without checking what that information was or who it related it to, you sent it to the department. And you sent it to the department in response to the department’s request for more information about your sick parents.
APPLICANT: Yes.
MEMBER:Okay. So, after that, you've said that you then opened the document relating to the aunty to see if she was sick, how she was sick and whether you were going to send money back to the family.
APPLICANT: Usually when I send an email to the department, I send it to myself also.
MEMBER: Okay.
APPLICANT: So, in the unread (indistinct) I realised I'd sent something wrong.
MEMBER: Okay. So, then what did you do?
APPLICANT: I was stuck.
MEMBER: You were stuck?
APPLICANT: Yes.
MEMBER:So, you didn’t go on to send obviously the correct information and say 'I've made a mistake. I have information about my uncle' and then seek to explain that when you are referring to parents you are referring to one person, not two. Who was an heir, not a parent. So, none of that took place. That's where it ended. You realise the mistake and said I made a mistake.
APPLICANT: I tried firstly to move down to the offices, but I was told, information given to me was 'we are contractors, you just have to go on the website and do this. You can't talk to anyone', when I went down during that time to (indistinct) - - -
MEMBER: And you didn’t go ahead and do that.
APPLICANT: No…
(Emphasis added.)
3Evidence regarding having sent money to a person named “Charles”[105]
[105]Transcript pp 41-42.
MEMBER:… The other topic that we covered in your answers to Mr Burgess was the sending of money to Uganda for someone who was named as Charles?
APPLICANT: Yes.
MEMBER:You were explaining that that person wasn’t your biological father…?
APPLICANT: Yes.
MEMBER: Is there anything you wanted to say about that?
APPLICANT: Yes, thank you, Member. Yes, it’s true, Member, that I was sending money to Uganda and the person I was sending that money to was the caretaker of the, what we call the body of ground. And that money was organising (indistinct) a clan contribution, when there are clan functions. And also, the burial ground was in a very sorry state, but I don’t have the money that I was (indistinct). When I put out sending the little bit down, this person that I was sending to, money, he is also, he stays in Masaka because that’s where our burial ground is.
Is not my biological father as the respondent said.
(Emphasis added.)
CONSIDERATION
The issue before the Tribunal is whether the Applicant was not of good character under s 25(2)(b)(iii) of the Act at the present time.
Whether the Tribunal is satisfied that the Applicant is not of good character
The Applicant
The Applicant made the following submissions in support of his claim that he is not ‘not of good character’ for present purposes:
(a)He is human and has made human errors, and this should not define his character.[106]
[106] Transcript, p 49 [20].
(b)He accepts there are inconsistencies in material he provided to the Department, however he had reasonably explained these:[107]
[107]Transcript, pp 49-50 and p 54 [5]-[25]. See also explanations provided throughout A3, which mirror those provided at the hearing (see p 4-6 and p 8-9]).
MEMBER: But on your side of the fence, Mr Kasirye, so putting myself in your shoes, aren’t you saying, what I understand your case to be is, well you acknowledge that you’ve made a few errors, whether they be typo or you wrote down the wrong name or you weren’t really sure what to put. But my understanding of your case is that you say, well, it actually doesn’t really matter too much because I, Mr Kasirye, have given some reasonable explanations around these mistakes and how they’ve occurred and why they’ve occurred and the tribunal should accept those explanations…
MR KASIRYE: … Yes, thank you.
MEMBER: Was that the main point you wanted to make …?
MR KASIRYE: I just wanted to throw light on that one, yes. Honourable Member, I believe that contrary to what the Minister thinks that is I’m not of a good character, it’s very minimal or I would say, maybe below that high hold of that, that the tribunal could take that as, or take it as that I’m not really of a good character. Reason being that prior to the good character in Uganda and in Australia, should be given weight. I’ve never been in any police cell, I’ve never committed any offence in my life. I’ve supported my community...
…
MEMBER:… But I think I can take it as far as saying, you disagree, obviously, with the conclusions that the Minister’s drawn about you having lied or been deceptive or having misrepresented information. Because you say, where there have been inconsistencies that it was an honest mistake or where that it was something different, you’ve given explanations around that.
You say, the Minister’s information gathering system wasn’t as good as it could have been and it disappointed you really, you think it should have been better. That, say, the Minister or the delegate didn’t have the appreciation that it needed to of those cultural nuances that you’re talking about in relation to heirs in relation to rights after someone passes away, as to how parents are referred to, whether they be biological or otherwise. Those types of things. So, those are the two main areas that I see that you say, well, the Minister wasn’t really up to the mark and for that, they shouldn’t have formed the conclusions that they did. Is that right?
MR KASIRYE: Thanks for the guidance, Member…That’s really what I was trying to look at that.
(Emphasis added.)
(c)If his citizenship was ultimately approved, he would pose no risk to the Australian community.[108]
[108] Transcript, p 51 [35].
The Respondent
The Respondent’s position that the Tribunal should be satisfied that the Applicant is not of good character was set out in submissions made in the following areas:
(a)Submissions regarding the factual findings the Tribunal should make in light of inconsistent evidence provided by or in relation to the Applicant.[109] These findings are in relation to five main topics.[110]
(b)Submissions regarding whether the Tribunal should find that the provision of any false or misleading information was done knowingly by the Applicant, and if it was, what impact such findings should have on the Tribunal’s assessment of his character.[111]
(c)Other evidence that may be relevant to the Tribunal’s assessment of the Applicant’s character.[112]
Findings of fact
1. The Applicant’s parents
[109] R3 [30a].
[110] See [67]-[84] below.
[111] R3 [30b].
[112] R3 [30c].
The Respondent submitted that the Applicant had provided the following inconsistent information about his parents:[113]
(a)That his parents separated when the Applicant was eight years old, that he did not see his mother after that occurred, he was always told his mother had passed away and that his father had died in a car accident when the Applicant was sixteen years old.[114]
(b)That his parents died in a car accident on 29 January 1995 and that the Applicant’s parents’ names where Charles Lwanga Kasirye and Diana Kasirye Nasubuga.[115]
(c)That his request on 5 September 2018 for an urgent citizenship ceremony was to enable him to obtain an Australian passport so that he could visit his “only left parent after losing [sic] others” who was said to be in hospital.[116] The parent was not named but referred to using male pronouns.[117] On the same date a person called “Vero” asserted that the Applicant’s “father needs to see [the Applicant] urgently if possible.”[118] In response to a request by the Department, the Applicant provided medical evidence referring to a 69-year old woman whose name appears to be Nanmia Morgnit.[119]
(d)In January 2019 the Applicant indicated to the Department that his “sick parents” “are soon passing away.”[120]
[113] R3 [32]-[35]. See also the Applicant’s evidence at [50]-[53] and [63] above.
[114] See R1, T8, p 59, being the statutory declaration accompanying the Applicant’s protection visa application.
[115] R1, T9, p 107, being a letter the Applicant provided with his citizenship application.
[116] R1, T11, p 121.
[117] R1, T11, p 121.
[118] R1, T12, p 127.
[119] R1, T14.
[120] R1, T9, p 143.
However, the Tribunal considers that these positive contributions are well outweighed by the knowing misrepresentations the Tribunal has found the Applicant has made to the Department in his various visa and citizenship applications and to this Tribunal at the hearing.
Character references
The Applicant has provided a number of character references in support of his application.[218] Having considered each of the references provided, none make any specific reference at all to the circumstances which resulted in the finding that the Applicant was not of good character. Further, none of the referees were made available for cross-examination at the hearing. In the circumstances, and referring to the Policy,[219] limited weight can be placed on these references.
[218] These character references are contained within A1 documents numbered 10, 12, 14, 15 and 17.
[219] Extracted at [38] above.
CONCLUSION
In the context provided by the relevant Policy and the CPIs,[220] the question for the Tribunal is whether a person of good character, being one of enduring moral qualities and one that would not practise deception or fraud in dealings with the Australian government (such as intentionally providing false information or other material deception during visa and citizenship applications) have behaved in the way that the Applicant did? Given the Tribunal’s findings that the Applicant misled the Department,[221] the fact that the Applicant continues, even now to fail to accept that he knew the documents he lodged in the past were false and given that the Applicant has shown no remorse, the Tribunal has concluded that the answer is “no.”
[220] See [29]-[38], which includes related decisions.
[221]Those actions, in the Tribunal’s view, outweighed the positive contributions the Applicant has made to the Australian community (set out at [104]-[105]).
For the reasons outlined above, the Tribunal is satisfied that the Applicant is not a person of good character and exercises its discretion to cancel the approval of Australian citizenship under s 25(2)(b)(iii) of the Act.
DECISION
The decision of a delegate of the Respondent dated 27 January 2021, to cancel the approval of the Applicant’s application for citizenship by conferral under s 25(2)(b)(iii) of the Australian Citizenship Act 2007 (Cth) is affirmed.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member
..............[Sgd]..........................................................
Associate
Dated: 20 April 2022
Date of hearing: 20 October 2021 Representative for the Applicant: Self-represented Solicitors for the Respondent: Mr A Burgess, Sparke Helmore Lawyers
1
7
0