Khalaj Amir Hosseini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 4377
•26 November 2021
Khalaj Amir Hosseini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4377 (26 November 2021)
Division:GENERAL DIVISION
File Number: 2020/6107
Re:Ali Reza Khalaj Amir Hosseini
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date:26 November 2021
Place:Brisbane
The Reviewable Decision dated 4 September 2020 is affirmed.
..............[SGD].................
Member R Maguire
Catchwords
MIGRATION – citizenship – application for citizenship by conferral – whether Applicant is of good character – where Applicant lied about date of birth – where Applicant made false declarations – where Applicant provided bogus documents – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686
Ghumaan and Minister for Home Affairs [2019] AATA 200
Haeri and Minister for Immigration and Citizenship [2009] AATA 422
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Nguyen and Minister for Home Affairs [2019] AATA 998
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082
Secondary Materials
Australian Citizenship Procedural Instructions 15 – Assessing Good Character under the Citizenship Act, 17 April 2019
Australian Citizenship Policy Statement
REASONS FOR DECISION
Member R Maguire
26 November 2021
INTRODUCTION
The Applicant seeks the review of a decision[1] by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Department or the Minister), made on 4 September 2020, to refuse the Applicant’s application for citizenship by conferral under section 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) on the ground that the Applicant did not meet section 21(2)(h) of the Act, which requires the Minister to be satisfied that the Applicant is of good character at the ‘time of the Minister’s decision on the application’.
[1] Exhibit T1, T documents T19, pages 138–150.
ISSUE FOR DETERMINATION
The issue for determination in this application, is whether the Applicant is a person of good character for the purposes of section 21(2)(h) of the Act at the time of this decision.
THE LAW
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 requires that if a person makes an application under section 21, the Minister (or a person delegated by the Minister) must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 21(2) sets out the general eligibility criteria for an Applicant who is 18 years or older, and a permanent resident. Section 21(2)(h) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the Applicant ‘is of good character at the time of the Minister’s decision’.
Good Character
The term ‘good character’ is not defined in the Act, however, guidance for decision-makers exists in the Australian Citizenship Policy Statement[2] and the Citizenship Procedural Instructions (CPIs) in particular, CPI 15, which together for present purposes represent government policy (the Policy).
[2] Exhibit R1, Respondent's Statement of Facts Issues and Contentions, Annexure 1.
CPI 15 states the following at paragraph 4.1:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
CPI 15 provides at paragraph 4.4, that as a general proposition, a person of good character would:
· respect and abide by the law in Australia and other countries;
· be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
· not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or
oother material deception during visa and citizenship application;
oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
ogiving false names and/or addresses to the police;
· not be the subject of any extradition order or other international arrest warrant;
· not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink-driving, excessive speeding or driving without a licence);
· not associate with persons who are involved in antisocial or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
· not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide;
· not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
The principles set out above are to be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. It is also necessary to consider information provided by the Applicant regarding his or her family life, for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrongdoing and the time that has elapsed since the wrongdoing. Some factors may support an adverse finding, while others may support a positive finding about a person’s character.
Factors to be taken into account under paragraph 4.7 of CPI 15 include instances where an Applicant has a criminal record including the commission of a “serious” offence, examples of which are offered:
· crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)
· war crimes, crimes against humanity, genocide;
· crimes against children;
· drug trafficking (including importation and supply);
· people smuggling;
· fraud (including identity fraud);
· harassment or stalking;
· terrorist activity;
· extortion;
· illegal pornography, including child pornography (sic)
· breaches of immigration law, including those that resulted in removal or deportation from Australia or another country;
· offences incurring prison sentences of 12 months or more.
In the Full Federal Court case of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431–432, Lee J stated in his separate reasons:
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 the 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 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 that case, the Court was constituted by Davies, Lee, and RD Nicholson JJ. Each of the judges gave separate reasons, concurring in the result. Nicholson J expressly concurred with the reasons of Davies J, and neither Davies J, nor Nicholson J expressed concurrence with the judgement of Lee J.
The question whether a person is or is not ’of good character’ is primarily an issue of fact.[3] Davies J remarked at 427–428:
The drawing of a conclusion by a decision maker as to whether he or she is satisfied that an Applicant for a visa is of “good character” requires the exercise of a value judgement. There are no precise parameters which distinguish “good character” from “bad character”. Although in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision…
[3] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 424 per Davies J (with whom RD Nicholson J concurred).
In deciding that fact, the Tribunal ‘was entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the [relevant] act’.[4]
[4] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420 per Bowen CJ and Deane J.
In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, the Full Federal Court[5] said at 197:
The words “good character” in this section should, as Lee J pointed out in Irving, (at 431–432), be understood as “a reference to the enduring moral qualities of a person”. Conduct may make those qualities visible, but it should never be confused with them. In each case having had regard to the conduct, the Minister or other decision maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character.
[5] Per Burchett, Branson, and Tamberlin JJ.
The decision of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 makes clear that in considering the application of policy, the Tribunal must not lose sight of its duty. Brennan J said at 642:
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.
Neither party has submitted that there are cogent reasons as to warrant a departure from the Policy in this review. Nevertheless, the Tribunal bears in mind that the Policy is not a binding checklist, and that decision-makers need to look at the merits of each case.
BACKGROUND
The Applicant is a 35-year-old male citizen of Iran, born in July 1986.[6] However, on his arrival in Australia on 14 November 2011 as an unauthorised maritime arrival, the Applicant told Australian authorities that he was born in December 1992.[7] The Applicant is also recorded as stating he was born in 1995.[8] In a statutory declaration dated 10 May 2019, the Applicant acknowledged that on arrival he had claimed to be years younger than he was.[9]
[6] Exhibit T1, T Documents, T1, page 100 at [3].
[7] Exhibit T1, T Documents, T12, page 96.
[8] Exhibit T1, T Documents, T15, page 109.
[9] Exhibit T1, T Documents, T14, page 100 at [8].
The Applicant sought to explain this lie in his statutory declaration made on 10 May 2019 when he claimed that he was the subject of sexual assault in his home country.[10] At paragraph 6, he said:
When I was in Iran, I was mistreated, bullied and harassed by the Basij and I was afraid that in the adult camps, I would be bullied and even raped and I told the smuggler my concern and he said that when I arrived in Australia to avoid being taken to an “adult’s” camp I should say that I was under 18.
[10] Exhibit T1, T Documents, T14, pages 100–101.
The Applicant was granted a permanent residency visa via a protection (subclass 866) visa on 29 February 2012.[11]
[11] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions at [3].
On 16 March 2016 the Applicant applied for Australian citizenship[12] in which he declared at item 6 that his date of birth was 23 July 1995.[13]
[12] Exhibit T1, T Documents, T4, pages 11-22.
[13] Ibid, page 11.
Evidence at Hearing
The hearing of this application took place on 9 June and 18 August 2021 via video conference. The Applicant was represented by Mr Stolar, of Coongie Pty Ltd, Migration and International Business Services, and the respondent was represented by Mr Kyranis of Sparke Helmore.
In his opening statement, Mr Stolar acknowledged that his client had lied about his age at the time of arrival in Australia, and said he did this based on his experience of prior sexual abuse in his home country, and fears of sexual abuse in adult detention. His protection visa was granted on the grounds that he had been sexually abused and other matters. Mr Stolar also conceded that his client subsequently provided bogus documents to perpetuate the initial lie.
Mr Stolar submitted that the matter must be considered holistically, and he referred to the statement of Psychologist Lauren Barrows, who recorded that the Applicant had been abused in his home country and was in a state of distress at the time of arrival. He was caught out by the Department trying to prove he was younger than he was.
Mr Stolar told the Tribunal that the Applicant’s previous migration agent provided the correct information of his identity and birth certificate. He submitted that the Applicant gained no benefit by lying about his age other than that he was not abused and set upon. He further submitted that the Applicant has been in Australia nearly ten years and has not been in any trouble during this period. He had developed Crohn’s Disease and was on a disability pension, but still tried to do work as a painter. He has a three-year-old daughter from a concluded relationship, and he provides for her.
Mr Stolar submitted that his client had not done any harm to anybody, and his lie happened at a time of extreme duress. Mr Stolar nevertheless conceded that in general terms, anyone who provides false information is not of good character but maintained that this case is different.
Mr Stolar referred the Tribunal to paragraphs 4.12 and 4.13 of CPI 15 and submitted that the Applicant does not have to be of perfect character, and maintained that since his entry to Australia, he had been of good character.
In evidence in chief, the Applicant told the Tribunal that he lowered his birth age by nine years because in Indonesia he had heard that in adult camps there were fights and fires. The circumstances were hard for him at that time, and around that time a boat had sunk on the way to Australia. Due to the information he had received, he was very fearful, and the smuggler told him that if he did not want to be in the adult camp, he should lower his age so that he would be placed in the family camp where it was much safer. The Applicant said that ten years ago he looked like a sixteen-year-old and had decided to lower his age to avoid the dangers of the adult camp.
He put his false age in his citizenship application. People he consulted told him not to disclose what he had done, or he would be sent back to his home country. He later went to a migration agent who convinced him to provide the original documents. His current documents including his driver’s licence show a false date of birth. He had tried for two to three years to change the information provided to the Department, but it had not replied. The Applicant said that he usually works if he can, but his medical specialists have told him not to work more than ten to fifteen hours per week. He is taking depression tablets which make him sleepy most of the time. A few years ago, he had a relationship with an Australian citizen which resulted in the birth of a daughter presently age three, and he still provides for her.
He said that he has not committed any offences since 2011. If he had his time over, he would not provide false information to the Australian Government. He regrets providing false information from the beginning and promised 100% it would not happen again.
Under cross-examination by Mr Kyranis, the Applicant agreed that he deliberately and falsely declared his date of birth on arrival so that the Australian Government would consider he was younger than he was. He was granted a protection visa on 29 February 2012 after his arrival in November 2011 by boat.
He had paid money through an intermediary for people smugglers to arrange his travel to Australia from Indonesia. The Applicant said that he had struggled with his conscience for four years and had thought about disclosing his correct year of birth in his citizenship application. Instead, he falsely declared his birth date in his citizenship application because he was fearful if he told the truth he would be deported. He said that because of his depression he did not have the strength to make proper decisions.
In his statutory declaration[14] of 10 May 2019, the Applicant said at [18], that he had not gained anything other than leaving the camp a little bit earlier than others. By, “a little bit earlier”[15] he meant that at that time adults were detained longer than people in the family camp. He was granted permanent residence three weeks after he left the camp.
[14] Exhibit T1, T Documents, T14, pages 100-101
[15] Transcript, page 16, lines 5-10.
The first time he told the Department the truth about his year of birth was in the statutory declaration of 10 May 2019. He obtained false identity documents from Iran to support his false date of birth.
He heard about the strife in the camps from the people smuggler he dealt with. He met him in Indonesia in a hotel, shortly before he left Indonesia. The Applicant said that he has worked in Australia, most recently last year in Canberra and had to return to Brisbane for an injection for Crohn’s Disease and was unable to return to his job, and lost it, and has since suffered from depression. He must have an indoor job because of his health and the need to avoid the sun. He was diagnosed with Crohn’s Disease, and his health deteriorated after he was given vaccines.[16]
[16] Transcript, pages 19, line 5.
He did not remember if he was working when he lodged his citizenship application.
There was no re-examination.
Evidence of Mrs Roya Majd
On the second day of the hearing, Mrs Roya Majd gave evidence of the efforts she had made to correct the information regarding the Applicant’s date of birth, and complaints she made in respect of inaction on the part of the government. She said the Department had accepted the Applicant’s correct birthdate, and no further action was taken against him. She believed that the Department accepts his correct birth date, and identity.
She said that she provided correct information to the Department regarding the Applicant’s date of birth around 10 May 2019.
In cross-examination, Mrs Majd confirmed that the Applicant had a current complaint before the Australian Information Commission in relation to the Department’s conduct.
The Tribunal accepts the evidence of this witness.
Evidence of Hamed Garibi Abagani
After a caution regarding self-incrimination and self-penalisation from the Tribunal, which he said he understood, Mr Gharibi gave evidence in line with his statutory declaration that he met the Applicant in the family camp in Christmas Island. He confirmed that while he was in Indonesia, he was told of fires and riots in the adult camps and that they should say they were under eighteen years and go to a family camp, otherwise they might go to Malaysia or elsewhere. He was about twenty years old at the time and did not think he could handle the adult camp.
He told Mr Kyranis he did not know the Applicant before going to the family camp. He said his date of birth was in January 1990, and he arrived in Australia in August 2011. He was asked by Mr Kyranis if he had told authorities he was under eighteen, and replied, “Yes I did”, at which point Mr Stolar objected. The Tribunal granted an adjournment to allow the witness to be given legal advice.
It is clear that this witness had himself lied to the Australian Government in the course of gaining entry to Australia. Accordingly, the Tribunal gives his evidence no weight.
Closing submissions
Mr Stolar told the Tribunal that his client admitted lying about his age when he first arrived. Because of the initial lie he subsequently produced false documents. The Department now knows his true identity. The present citizenship application was made in March 2016. The Department was playing double jeopardy by denying his character after denying his identity.
Issues for consideration require a holistic approach, and consideration of the prejudice to another party. He submitted that there was no prejudice to any person or damage to the process of immigration. The Applicant has an Australian citizen daughter three years of age. The criteria are not to be applied rigidly or inflexibly. His client has admitted his mistake and is very remorseful. Reference was made to Ms Burrow’s report, and it was submitted that the Applicant’s character did not need to be perfect. The Applicant was damaged and was fearful of sexual assault or abuse. No conduct in the past five years has come to the attention of government, and his references show good character. Given the length of time and lack of offending, the matter should be remitted with a direction that he satisfies the Act.
Mr Kyranis addressed the Tribunal in line with the respondent’s Statement of Facts Issues and Contentions, and stated that as a general proposition, a person who is of good character would not practice deception or fraud in dealings with government. He did so for a benefit to obtain a visa and in the belief that he would be released into the community earlier. He set out to obtain false documents. He did not take the opportunity to correct the situation when he applied for citizenship and only started being honest following the delivery of his bogus documents. A prolonged fraud means he should not be considered of good character. There was no evidence of material contribution by the Applicant to his local community. There were no balancing or significant mitigating circumstances. The seven character references at page 131 of the T Documents do not acknowledge his history of false statements to the Australian Government, and they should be given very little weight. The Applicant had accepted the advice of a people smuggler he had just met, and his evidence should be questioned. It does not adequately explain why he lied again four years later when he applied for citizenship. Little weight should be given to Mr Abagani’s evidence, and it can be inferred that he has lied to the Australian Government.
The report of the registered Psychologist Lauren Burrow at Exhibit A1 is largely a recitation of what the Applicant had told her and did not assess his mental health at the time of arrival or if his mental health explained his conduct.
The Applicant had contributed to the delay in processing his application by perpetuating his initial lies to the government.
CONSIDERATION
Evidence before the Tribunal establishes that the Applicant lied to the Australian Government about his age for the entire period between 14 November 2011 and the Statutory Declaration of 10 May 2019, and notwithstanding this declaration, he returned to his lie in his application to this Tribunal.[17]
[17] Exhibit T1, T Documents, T2, page 4.
The prolonged deception of the Australian Government and others is reflected in the following documents which are before the Tribunal:
(a)the Australian Government issued Titre de Voyage issued to him on 3 September 2012;[18]
[18] Exhibit T1, T Documents, T8, page 54.
(b)the Australian Titre De Voyage issued in his name on 21 November 2014;[19]
(c)the Application for Australian citizenship Form 1300t,[20] which he declared to be true and was made on 16 March 2016;
(d)the Queensland Driver’s Licence issued to him;[21]
(e)the Certified Translation from Persian into English Birth Certificate which he provided to the Department;[22]
(f)the Certified Translation from Persian into English of a National Identity Card which he provided to the Department;[23]
(g)the Certified Translation from Persian into English of a Completion of Studies Certificate High School Temporary Diploma which he provided to the Department;[24]
(h)the personal particulars for assessment including character assessment Form 80 which he declared to be true and was signed by him on 14 July 2017;[25]
(i)the Applicant’s daughter’s Birth Certificate dated 31 May 2018;[26]
(j)the Advice by an immigration agent/exempt person of providing immigration assistance Form 956 dated 28 November 2018 which he provided to the Department;[27] and
(k)the present application for review[28] made on 25 September 2020.
[19] Exhibit T1, T Documents, T8, page 147.
[20] Exhibit T1, T Documents, T4, pages 11–22.
[21] Exhibit T1, T Documents, T8, page 49.
[22] Exhibit T1, T Documents, T8, page 55.
[23] Exhibit T1, T Documents, T8, page 72.
[24] Exhibit T1, T Documents, T8, page 74.
[25] Exhibit T1, T Documents, T7, pages 27–44.
[26] Exhibit T1, T Documents, T11, page 89.
[27] Exhibit T1, T Documents, T11, pages 86–88.
[28] Exhibit T1, T Documents, T2, pages 3-9.
Of great concern to the Tribunal is that the Applicant went well beyond simply telling verbal lies. He knowingly procured and provided three bogus documents translated from Persian to the Department on 27 July 2017 in support of his application for citizenship.[29] These documents were found to be bogus,[30] and an invitation to comment on adverse information was sent to the Applicant on 11 February 2019. It was only following this letter that the Applicant commenced being truthful with the Australian Government in his statutory declaration of 10 May 2019. The extended history of the Applicant’s deception leads this Tribunal to reject the submission that the Applicant’s dishonesty was limited to his arrival in Australia in 2011. Having regard to the prolonged history of deception, and the exacerbating fact that the Applicant went so far as to procure bogus documents to further this deception, the Tribunal generally gives his evidence no weight.
[29] Exhibit T1, T Documents, T12, page 96.
[30] Exhibit T1, T Documents, T12, page 96.
None of the character references provided by the Applicant disclose any knowledge on the part of the various authors of any deception practised by the Applicant on the Australian Government, let alone his prolonged history of deception of the Australian Government. None of the authors were called to give evidence and as such, the Tribunal has been denied the opportunity of ascertaining if they were in fact aware of this deception and whether they would have provided the statements, notwithstanding the deception. In these circumstances, the various statements are given very little weight by this Tribunal.
The Tribunal has had regard for the report of Lauren Burrow, Registered Psychologist dated 12 February 2021. Ms Burrow said that she had seen the Applicant on eight occasions since June 2020. The Tribunal notes that Ms Burrow recorded the Applicant’s false date of birth, and that he had, “very limited contact” with his daughter. She also recorded that she was, “unable to report as to whether he experienced symptoms of PTSD following his arrival in Australia”, although having regard to his experience on the boat journey to Australia and his subsequent development of Crohn’s Disease, she thought it likely that he did experience symptoms of PTSD.
Ms Burrow’s report falls short of establishing what the Applicant’s mental health was at the time of his arrival in Australia, and at the time that he applied for Australian citizenship. The report was unenlightening as to whether any mental health symptoms he may have suffered either at the time of entry into Australia or at the time of application for citizenship would explain his provision of false information or bogus documents.
The Tribunal considers that this Applicant has made little apparent positive contribution to the Australian community. To the extent that the Applicant has expressed remorse, the Tribunal gives this little weight having regard to the duration of his deception, and the lengths he went to corroborate it. He only came clean with authorities after his deceptions had been discovered.
The Tribunal acknowledges that there has been a significant delay in the processing of the Applicant’s citizenship application. However, the Tribunal considers that the Applicant has, through his protracted lies and deception, contributed substantially to this delay.
The Tribunal rejects the submission that the Department is relying on double jeopardy to refuse the Applicant citizenship. Section 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application. It is well-settled that Australian citizenship is, “a privilege given to persons who demonstrate good character”.[31] Section 21(1A) provides, amongst other things, that the Minister must not approve a person becoming an Australian citizen unless the person is eligible under section 21(2).
[31] Per SM Handley in Haeri and Minister for Immigration and Citizenship [2009] AATA 422, [35].
This Tribunal has previously found that prolonged deception of Australia’s immigration authorities weighs against an Applicant’s good character.[32] This is because Australia’s citizenship program, “operates on the basis that Applicants will be truthful and not provide false or misleading documents” such that it, “would be contrary to the public interest for [an] Applicant to be permitted to benefit from his [deceptive] conduct in undermining [Australia’s citizenship] programs".[33]
[32] Nguyen and Minister for Home Affairs [2019] AATA 998, [49] (DP Constance); Ghumaan and Minister for Home Affairs [2019] AATA 200, [166] (SM Puplick).
[33] Nguyen and Minister for Home Affairs [2019] AATA 998, [53].
Truthfulness in the completion of government documents, such as applications for citizenship, is therefore to be treated as, “an absolute requirement”[34] and it is the responsibility of a citizenship Applicant to ensure that information submitted by them, or on their behalf, is truthful.
[34] Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686, [97].
This Tribunal respectfully adopts the words of Senior Member Puplick in Re Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082 at [82]–[84]:
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.
In Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen, at [8] discussed the role of the character requirement in a citizenship application as follows:
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 community 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.
In ruling against the Applicant, the Tribunal is mindful of the fact that after a period of time, it may be that he is able to satisfy the good character requirement.
DECISION
In the light of the foregoing, the Tribunal is not satisfied that the Applicant was a person of good character at the time the Reviewable Decision was made, nor as at the date of this decision. Accordingly, the Reviewable Decision dated 4 September 2020 is affirmed.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
.................[SGD]...............................
Associate
Dated: 26 November 2021
Dates of hearing: 9 June 2021 and 18 August 2021 Date final submissions received: 15 July 2021 Advocate for the Applicant: Mr A Stolar, Coongie Pty Ltd Solicitors for the Respondent: Mr J Kyranis, Sparke Helmore Lawyers ANNEXURE A – EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
T1
Section 37 T-Documents (T1 to T21 pages 1 to 186)
R
-
4 November 2020
R1
Respondent’s Statement of Facts, Issues and Contentions including
- Annexure 1: Australian Citizenship [Policy Statement]
- Annexure 2: Citizenship Procedural Instruction 15 (CPI15) – Assessing Good Character under the Citizenship Act
R
6 April 2021
6 April 2021
A1
Applicant Statement of Facts Issues and Contentions including attachments:
- a) Report of Lauren Barrow, Registered Psychologist dated 12 February 2021
- b) Letter from Dr Behzad Rafiee dated 3 October 2019 & Letter from Dr Neal Martin, Gastroenterologist dated 7 April 2020
- c) Birth Certificate of Applicant’s Daughter
A
3 March 2021
4 March 2021
A2
Applicant’s Submissions including:
- Statutory Declaration of the Applicant declared 10 May 2019
- Certified Translation of the Applicant’s birth certificate
- Certified Translation of the Applicant’s National ID card
- Letter from Dr Behzad Rafiee dated 3 October 2019 & Letter from Dr Neal Martin, Gastroenterologist dated 7 April 2020
- Commonwealth Ombudsman Complaint dated 8 February 2021.
A
-
11 February 2021
1
10
0