KLJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 2447
•24 July 2020
KLJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2447 (24 July 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0189
Re:KLJG
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member K Millar
Date:24 July 2020
Place:Adelaide
The Tribunal sets aside the decision under review and remits it for reconsideration in accordance with the direction that the ground to cancel approval of the Applicant becoming an Australian citizen in s 25(2)(b)(ii) of the Australian Citizenship Act 2007 is not established.
........................................................................Senior Member K Millar
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – approval for citizenship cancelled – inconsistent information – whether Tribunal is satisfied Applicant is of good character – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Bashi v Minister for Immigration and Border Protection [2016] AATA 453
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Policy (“the Policy”)
Aziz Amin Ahmadzai and Ziauddin Wahaj, ‘Afghanistan, Birthdays and War’, The Diplomat (online, 15 January 2015) align="left">Department of Foreign Affairs and Trade, Country Information Report Afghanistan (2013)
Department of Foreign Affairs and Trade, Country Information Report Pakistan (2019)
Department of Foreign Affairs and Trade, Country Information Report Pakistan (2015)
Kevin Sieff, ‘In Afghanistan, Jan. 1 is everyone’s birthday’ The Washington Post (online 31 December 2013) < FOR DECISION
Senior Member K Millar
24 July 2020
INTRODUCTION
This is an application for review of a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Minister”) to cancel KLJG (“the Applicant”)’s approval for citizenship under s 25 of the Australian Citizenship Act 2007 (“the Act”).
The Applicant is a citizen of Afghanistan. She came to Australia in 2009 as the spouse of “Mr A” and applied for Australian citizenship by conferral on 8 October 2015. Her application was approved on 4 November 2015.
On 20 July 2016, a delegate of the Minster issued a Notice of intention to cancel her citizenship approval (“Notice”) because the delegate considered she was not of good character. This resulted from alleged inconsistencies in information provided in her visa application and citizenship interview.
On 21 December 2018, the delegate cancelled the approval of the Applicant becoming an Australian citizen under s 25(2)(b)(ii) of the Act on the basis that she was not of good character.
In issue in this matter is whether the Applicant is not of good character; and, if so, whether the approval of the Applicant becoming an Australian citizen should be cancelled.
The Applicant has applied for a review of this decision. At the hearing, the Applicant appeared in person and was represented. The Tribunal was assisted by an interpreter in the Hazaragi and English languages.
LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Under s 24 of the Act, the Minister must approve or refuse to approve the person becoming an Australian citizen.
Under s 25(1) of the Act, if the Minister has approved a person to become an Australian citizen, the approval may be cancelled if the person has not yet become an Australian citizen and one of the situations set out in ss 25(2) and (3) apply.
As it applies to the Applicant, s 25(2) of the Act provides that:
(2)The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
…
(iii)not of good character.
Section 52(1)(c) of the Act provides that an application can be made to this Tribunal for a review of a decision made under s 25 of the Act.
THE TEST TO BE APPLIED
The test in s 25(2) of the Act is whether the Tribunal is satisfied that the Applicant is not of good character. This is in contrast to the test in s 21(2)(h) of the Act, that the person is of good character. There must be information before the Tribunal to establish that the Applicant is not of good character, or to put this in in another way, the Tribunal must be positively satisfied of a negative matter.[1]
[1] Bashi v Minister for Immigration and Border Protection [2016] AATA 453, [5] (DP Alpins).
In terms of the degree of satisfaction required, this does not need to be more than a mere satisfaction, and it is incorrect to refer to a “comfortable satisfaction”.[2] It requires an affirmative belief that the Applicant is not of good character.[3]
[2] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574, [65] (‘BOY19’).
[3] Ibid [55].
As this matter relates to character this is not a fact to be proved, but an opinion requiring evaluative judgement.[4]
[4] Ibid.
WHAT IS “GOOD CHARACTER”?
As has been stated in previous cases, the term “good character” has not been defined and is to be given its ordinary meaning. As stated by the Lee J in the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs[5] at 431-432:
… 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 to the good standing, fame or repute or that person in the community.
[5] (1996) 68 FCR 422 (‘Irving’).
This was expanded on by O’Bryan J in BOY19 at [51], who, after citing Irving stated, in relation to good character in s 21 of the Act:
The expression is not concerned with the physical or intellectual attributes or abilities of a person … [it] does not have a fixed and precise content … the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions … the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.
The Preamble of the Act provides guidance in identifying right and proper behaviours for the purpose of assessing good character.[6] This includes loyalty to Australia, sharing democratic beliefs, respecting the rights and liberties of Australians and upholding and obeying the laws of Australia.
[6] Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at 119.
There is also guidance on the application of the good character requirement in the Australian Citizenship Policy (“the Policy”). Chapter 11 of the Policy sets out the relevant legislative requirements and policy guidelines for Australian citizenship where good character is a factor, it states:[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.
[7] T4/23.
It sets out that the phrase “enduring moral qualities” encompasses the following concepts:[8]
§characteristics which have been demonstrated over a long period of time
§distinguishing right from wrong
§behaving in an ethical manner, conforming to the rules and values of Australian society.
[8] T4/23.
The Policy further outlines the characteristics of “good character”, as an Applicant who would:[9]
[9] T4/25.
§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.
In regard to moral deficiencies founded by an untruth, honesty and dishonesty are not moral absolutes, and the circumstances in which a lie is told has a substantial bearing on perceived moral deficiencies. In BOY19 the lie was told in circumstances where the applicant was described as desperate and in fear of being returned to Pakistan. Justice O’Bryan stated at [72] that:
The moral deficiency (if any) associated with a lie that is told by a person believing the lie is necessary to save the person from abhorrent and unjustified threats to their safety is entirely different to the moral deficiency associated with a lie that is told for the purposes of personal enrichment.
INCONSISTENCIES RELIED ON BY THE DELEGATE
The delegate found that the Applicant provided inconsistent information in her spouse visa application compared to her citizenship interview. Those inconsistencies were in respect of:
(a)her family composition;
(b)her account of travel to Pakistan
(c)her marriage to Mr A;
(d)the information regarding the circumstances of her first husband’s death;
(e)the information regarding the death certificate of her first husband; and
(f)her knowledge of “S”.
The delegate found that the inconsistencies in the information provided by the Applicant eroded her credibility and called into question the veracity of her statements. On the basis of the inconsistencies in her account, the delegate found she had provided false information, and there was a pattern of dishonest behaviour. The delegate found an applicant of good character would respect and abide by the law and be truthful. As a result, the delegate found the Applicant did not meet the definition of good character.
These allegations, and the subsequent assessment of the Applicant’s character, are made more comprehensible by the integrity assessments contained on the Department file. This contains a hypothesis that the Applicant is a citizen of Pakistan, that her two eldest daughters are actually the daughters of Mr A, and that her purported first marriage was fabricated to provide a basis for Mr A’s claim for a protection visa.[10] It is implied that any subsequent incorrect information is an attempt to remain consistent with Mr A’s claims for protection. Mr A is a citizen of Australia.
[10] T9/94.
The Applicant has provided an Afghani identity document (taskira) that has been verified by the Department as being genuine.[11]
[11] T6/77-78.
The Applicant claimed that the differences between her citizenship interview and her spouse visa application resulted from poor English and her discomfort about being in a room with men.
The Applicant achieved a score of 90 per cent in her first attempt at the citizenship test, which was conducted in English. The Applicant had 423 hours of English lessons when she arrived in Australia and holds an Australian driver’s licence. She did not ask for questions to be repeated in the citizenship interview. Dr “PD”, the Applicant’s general practitioner, reported that the Applicant’s English skills are poor, and that she attended appointments with her husband and her daughter. Dr “JG”, her psychologist, states that he was unable to proceed with his interviews due to language problems.
While I do not accept that her level of English was as poor as she claimed, as she would not otherwise have scored 90 per cent in the citizenship test or have been able obtain an Australian driver’s licence, I do accept that she has a relatively low level of English language that makes it difficult to communicate with others in an interview setting. At the citizenship interview, she had the benefit of communicating with the interviewers with the assistance of an interpreter. The Applicant stated at the start of the interview that she understood the interpreter. I do not consider there was an impediment to her communicating in her first language with the interviewers.
A transcript and audio extracts of the Applicant’s citizenship interview were before the Tribunal.[12] This included audio of the Applicant making a joke with the interviewers and laughing. The Applicant’s representative pointed to a line of questioning that was robust; however, it is the role of the interviewers to test information provided, and this was not conducted in an aggressive or disrespectful way. Her husband was present for most of the interview but had to leave to collect their children from school before the interview concluded. In addition to the two male interviewers present at the interview, there was a female interviewer and female interpreter present; however, the male interviewers asked the majority of the questions.
[12] Exhibit R1.
The Applicant provided a medical report from her general practitioner, Dr PD[13] and a psychology report from Dr JG,[14] a registered psychologist. Both Dr PD and Dr JG gave oral evidence to the Tribunal.
[13] Exhibit A4.
[14] Exhibit A5.
Dr PD reports a diagnosis of depression and post-traumatic stress disorder (“PTSD”). Dr PD said she diagnosed depression based on the Applicant’s responses to a K10 questionnaire and on interview. A DASS 21 questionnaire was also administered by Dr PD. The diagnosis of PTSD was based on the Applicant providing a history of exposure to psychologically distressing events and experiencing flashbacks and avoidance of bad memories, headache and other physical symptoms. Dr PD said that this affects the Applicant’s ability to perform day to day functions and think clearly. She stated that she is scared to approach others outside of the home. She provided a mental health care plan for the Applicant dated 18 September 2019.[15] The Applicant was first prescribed a tricyclic antidepressant medication on 22 May 2019. Dr PD referred the Applicant to a male psychologist, Dr JG;[16] in oral evidence, she said she did not realise this would be an issue for the Applicant as her daughter, who accompanied her to appointments, did not express any concerns, and the Applicant has seen male medical practitioners in the past. From this evidence, the Tribunal concludes that a diagnosis of depression and PTSD was made on the basis of interviews and self-reported symptoms to Dr PD, that Dr PD observed the Applicant’s English language skills were poor, that there were no concerns raised by the Applicant or her family about being referred to a male psychologist, and that Dr PD did not foresee any issues with the Applicant speaking to a male psychologist.
[15] Exhibit A6: GP Mental Health Care Plan.
[16] Ibid: Referral letter.
Dr JG provided a report and gave oral evidence. Dr JG holds a doctorate in educational psychology and has provided evidence that he had seen the Applicant on a total of three occasions prior to writing this report. His undated report states:[17]
I diagnose her as suffering extremely severe post traumatic stress disorder with associated extreme anxiety panic attacks and a tendency to withdraw and be as it were frozen with fear when confronted with the presence of a stranger, particularly a male.
Hence she is likely to give on(sic) verbal assent to the questioner simply to please. Hence no credence can be given to her answers.
My first therapy session with her was using a phone interpreter and was of no benefit as the male interpreter did not speak her dialect.
Her 16 year old daughter who was present tried to assist but this was unsuccessful.
I then arrange for her husband to attend as an interpreter as he speaks good English and this was less than satisfactory as she remained in a withdrawn and frozen with fear state …
I have arranged to see her again with her husband hoping she will become more relaxed and able to engage in assisted discourse.
I will attempt to treat her PTSD with EMDR therapy of some 10 plus sessions with reviews of progress.
[17] Exhibit A5, 1.
In his oral evidence, Dr JG did not have the benefit of having his report available to him. He was unclear about which sessions had been unable to proceed due to difficulties with the interpreter. After experiencing difficulty with the interpreter, he relied on the Applicant’s husband and daughter to interpret. In oral evidence, he agreed he had been unable to achieve an in-depth and thorough interview. He said he considered that the Applicant has extremely severe PTSD and extreme anxiety on the basis of his observations, and because he would expect a person with PTSD to have severe anxiety. He said he formed his opinion on the diagnosis of Dr PD and the self-report of the DASS 21. He agreed that the DASS 21 is not used to diagnose PTSD.
Dr JG has relied on interpreting from the Applicant’s 16-year-old daughter and her husband, which in the context of alleged sexual assault does not appear appropriate, regardless of the Applicant’s reported consent to these arrangements. He said that he had not obtained any direct history from the Applicant, instead relying on other sources. Dr JG said the sessions he had conducted with the Applicant had not proceeded effectively, and in these circumstances, it is difficult to see how he formed his conclusions. Therefore, while the Tribunal accepts his observations of the Applicant’s conduct during the interviews, it places little weight on his report as evidence in support of her purported reactions during the citizenship interview.
The Tribunal does not accept that that the Applicant experienced a high level of anxiety or discomfort in the citizenship interview or that the conduct of that interview was such that she felt intimidated or anxious. It does accept her level of English language skills is relatively low.
Family composition
In the Applicant’s visa application, she declared she had four sisters, “L”, “G”, “K” and “SH” and two brothers, “MH” and “MA”. A different birth order was advised in the citizenship interview and the Applicant stated L and SH were friends.
This inconsistency was put to the Applicant in the Notice. In her response to that Notice, she stated her sisters L and K are deceased. She stated that she cannot remember her own date of birth and does not recall her siblings birth order as this has little meaning in Afghanistan.
Her contention that birth dates are of little importance in Afghanistan is supported by country information,[18] with many Afghans born during the conflict unaware of their date of birth. Government paperwork asked only for an approximate birthday on the Islamic calendar.[19]
[18] Aziz Amin Ahmadzai and Ziauddin Wahaj, ‘Afghanistan, Birthdays and War’, The Diplomat (online, 15 January 2015) Kevin Sieff, ‘In Afghanistan, Jan. 1 is everyone’s birthday’ The Washington Post (online 31 December 2013) <>
In the citizenship interview, the Applicant clarified that she had sisters with these names, but that they are deceased. She stated she did not mention them earlier because they are deceased. On it being put to her that at the interview that she recorded them as living in Afghanistan, she said did not know and thought that was the way she had to [respond].
The Tribunal accepts that there is little importance attributed to birth date and birth order in Afghanistan, and that a failure to recall birth order does not reflect a deliberate attempt to mislead. The Tribunal also accepts the Applicant’s account of her deceased sisters.
The Tribunal is not satisfied that the Applicant’s answers to questions asked about her sisters, or information she provide about her sisters or the birth order of her family members reflects adversely on her character.
Account of travel to Pakistan
The delegate raised alleged inconsistencies in the Applicant’s account of her travel from Afghanistan to Pakistan. In her spouse visa application, she stated that she travelled with her brother to Pakistan, while in her citizenship interview, she stated that her neighbour arranged her travel. In the response to the Notice, she stated she travelled with her brother, her two daughters and her neighbour.
The delegate also raised inconsistencies about the year in which the Applicant is reported to have travelled to Pakistan, with the years 2000, 2002 and 2003 mentioned as the year in which she moved to Pakistan.
The Applicant’s account of how she travelled to Pakistan does not have any apparent bearing on her character, particularly as dates are of little importance in Afghan society and a different calendar is used. The Applicant’s Afghan identity document has been verified as genuine, and it is difficult to see how an account of her travel to Pakistan, and who she travelled with a considerable period on the past, reflects on her character at this point in time. No conclusion was drawn, or could be sustained on the information available, that she did not travel from Pakistan to Afghanistan.
Marriage to Mr A
The delegate found that the Applicant provided inconsistent information about how she reconnected with her current husband, Mr A, in Pakistan. In her spouse visa application, the Applicant stated that she had reconnected with Mr A in 2005, they were reintroduced by Mr A’s uncle. The delegate considered this to be inconsistent with information provided at the citizenship interview, where she stated that she had met Mr A’s uncle in Pakistan and that he provided Mr A’s contact details to her, after which he came to Pakistan and they were married.
There is no inconsistency of substance in these accounts, as the general account of reconnecting with Mr A through his uncle is consistent in both accounts. Minor inconsistencies about events that occurred a considerable period in the past in circumstances where a person has left their country of origin and is living illegally in another country does not reflect adversely on their character.
Information regarding the circumstances of her first husband’s death
The delegate referred to inconsistencies in the accounts of both Mr A and the Applicant about the death of the Applicant’s first husband. The account of a third party, in this case Mr A, does not reflect on the Applicant’s character. It is inferred that her account of the death of her first husband is not consistent with the account of Mr A. It has not been alleged or established that her first husband is alive. This appears to relate to the core proposition that Mr A’s claims for protection were unfounded. This has not been found or established in this matter.
The delegate also referred to the fact that in the citizenship interview, the Applicant was unable to identity the death certificate of her first husband and that after being shown the document, she advised that she did not know the document or what it was.
The Applicant states she cannot recognise documents without photographs because she cannot read and said in the citizenship test the questions and answers were read to her.
Failing to recognise a death certificate in these circumstances, or even failing to recognise a death certificate, does not either establish her husband did not die, and she therefore is untruthful or that she is not of good character.
Information regarding the death certificate of her first husband
The death certificate of the Applicant’s first husband was referred for verification and was found to be fraudulent. In the citizenship interview, the Applicant is recorded as stating she had not been to the Afghan Consulate in Quetta as there was no need to do so, and that she did not go out in Pakistan.
In her response to the invitation to comment on the fraudulent death certificate, the Applicant stated that she attended the Afghan Consulate in Quetta twice with her cousin and was not aware that the certificate was fraudulent. She did not know it was the Afghan Consulate she was attending to obtain her first husband’s death certificate and her passport as she was unaware that was where the documents came from. She also stated that as this was more than 10 years ago, it is an immense task for a person who is not literate to remember the appearance of a document.
The Department of Foreign Affairs and Trade (“DFAT”) report on Afghanistan[20] at the most proximate time to the Applicant’s visa application states at [3.64]:
… official documents are sometimes issued beyond the jurisdiction of the issuing authority. For example, Afghan overseas missions do not have authority to issue death certificates for a death in their country of responsibility but such documents are known to exist. DFAT is, as of July 2013, unable to determine how widespread the practice is.
[20] Department of Foreign Affairs and Trade, Country Information Report Afghanistan (2013).
The difficulty for Afghans in obtaining documents lawfully in Pakistan, and the prevalence of fraudulent documents, has been documented by DFAT.[21] The provision of a fraudulent document in a context where obtaining a genuine document is difficult or is not possible, or circumstances where the person obtaining the document was not aware the document is fraudulent, does not show the information contained in the document is false.
[21] Department of Foreign Affairs and Trade, Country Information Report Pakistan (2019), [3.65], [5.71]-[5.76]; Department of Foreign Affairs and Trade, Country Information Report Pakistan (2015), [5.44 – 5.46].
The Department put the adverse information regarding the death certificate to the Applicant in a letter dated 12 March 2008,[22] but proceeded to grant her a Subclass 309 visa. The reasons the Department decided to grant this visa despite the presentation of a fraudulent document is not before the Tribunal. There are no further details provided as to whether the Applicant could readily obtain a legitimate document. The submission that accompanied the Applicant’s spouse visa application states the Applicant was unable to get a death certificate form the Ministry of Interior and that the Afghan Consulate demands bribes and it is virtually impossible to even get past the security guards.[23]
[22] ST35/76.
[23] ST31/16.
In the absence of information to show that the Applicant could readily obtain a legitimate document but chose not to do so, or that the provision of a fraudulent document was a deliberate attempt to mislead or deceive the Department, I am not satisfied that this reflects adversely on her character.
Knowledge of “S”
The Applicant was shown photographs of various people at her citizenship interview, and she was asked if she knew the person in the photographs. One of the photographs was of S, with whom she lived for a number of years. The Applicant denied knowing her.
The Applicant acknowledged that she did not tell the truth at her citizenship interview about her knowledge of S and stated that she was scared at the interview and that because S does not like her to talk about her, she denied knowing her when shown her photograph.
The Applicant said that when she was living in Pakistan, S’s sister “M” was her neighbour. The Applicant says she was contacted by M in Australia, who asked her to take care of S because she is sick. The Applicant said S is difficult and refused to assist her by providing a DNA test to show they are not related.
While there appears to be speculation on the part of the Department that S is Mr A’s sister,[24] there is no further information to support this suggestion. Even if this were the case, it is difficult to see what affect this should have on an assessment of the Applicant’s character.
[24] T8/88.
The Tribunal finds the Applicant was untruthful in her answers to questions asked of her about S. This was in the context of an interview with immigration officials where the Applicant had the use of an interpreter and it reflects adversely on her character.
IS THE APPLICANT NOT OF GOOD CHARACTER?
The difficulty with this matter is that the majority of the information referred to by the delegate is inconsistent information. Merely providing inconsistent information does not in itself reflect on a person’s character. An assessment of character in these circumstances requires a definitive finding that statements given were false or misleading and were in some way purposefully false or misleading.
Of the matters raised by the delegate, the Tribunal considers that the Applicant failing to disclose that she knew S reflects adversely on her character. This is in the context of an interview with officers of the government.
However, I am not satisfied that this incident of itself shows she is not of good character or that this shows a pattern of dishonesty or of false dealing with government officials or shows of visa fraud.
As the Tribunal is not satisfied that the Applicant is not of good character, the decision under review is set aside
DECISION
The Tribunal sets aside the decision under review and remits it for reconsideration in accordance with the direction that the ground to cancel approval of the Applicant becoming an Australian citizen in s 25(2)(b)(ii) of the Australian Citizenship Act 2007 is not established.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar
....................[Sgnd].........................
Associate
Dated: 24 July 2020
Date of hearing:
11 and 12 June 2020
Applicant
In person
Advocate for the Applicant:
Patricia Rushton, Beena Rezaee Legal and Migration
Advocate for the Respondent:
Katarina Grenfell
Solicitors for the Respondent:
Australian Government Solicitor
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