Koker and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 118
•4 February 2020
Koker and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 118 (4 February 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0642
Re:Charles Koker
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:4 February 2020
Place:Canberra
The decision under review is affirmed pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
............................................................
Member W Frost
Catchwords
CITIZENSHIP – application for citizenship by conferral – application for citizenship refused - whether the Tribunal is satisfied the applicant is of good character – where the applicant is said to have facilitated unlawful migration outcomes – Tribunal not satisfied the applicant is of good character – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 35, 43
Australian Citizenship Act 2007 ss 20, 21, 24, 52
Migration Act 1958 ss 101, 102, 103, 109
Cases
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27
May and Minister for Immigration and Multicultural Affairs [2000] AATA 480
Secondary Materials
Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs, Citizenship Policy, 1 June 2016
Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs, Citizenship Procedural Instructions, 17 April 2019
REASONS FOR DECISION
Member W Frost
4 February 2020
INTRODUCTION
The Applicant, Mr Charles Koker, was refused Australian citizenship by conferral on 21 January 2019 on the ground that he was not of ‘good character’, as required under the Australian Citizenship Act 2007 (Citizenship Act).
A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multiculturalism (Minister) decided that Mr Koker had facilitated the unlawful arrival into Australia of a person who was not the intended recipient of a visa issued to a person said to be Mr Koker’s half-sister, ‘Margret Coker’. In that reviewable decision, reference was also made to allegations the Minister’s department (Department) had received that Mr Koker was involved in facilitating migration outcomes for African nationals and/or travel to Australia in exchange for money.
Mr Koker applied for review by the Administrative Appeals Tribunal. The Tribunal considered all of the documents in two bundles of documents filed in this proceeding on 19 March and 28 March 2019, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (being Exhibits R3 and R4, respectively), and the additional bundle of material relied upon by the Minister’s delegate in making the reviewable decision, which was filed on 17 May 2019 (Exhibit R5). The following further documents lodged with the Tribunal were also considered:
(a)Mr Koker’s Statement of Facts, Issues and Contentions dated 9 August 2019 (Exhibit A1);
(b)Statutory Declaration of Mr Koker dated 14 June 2019 (Exhibit A2);
(c)Statutory Declaration of Margret Coker dated 13 June 2019 (Third Statutory Declaration) (Exhibit A3);
(d)Statutory Declaration of Margret Coker dated 12 November 2019 (Fourth Statutory Declaration) (Exhibit A4);
(e)Minister’s Statement of Facts, Issues and Contentions dated 13 September 2019 (Exhibit R1);
(f)Chapter 15 of Citizenship Procedural Instructions issued by the Minister’s Department on 17 April 2019 (Exhibit R2);
(g)Two documents filed by the Minister, and over which the Tribunal made an order on 17 May 2019, pursuant to subsection 35(4) of the AAT Act, being ‘Confidential Document 1’ and ‘Confidential Document 2’ (Exhibits R6 and R7 respectively, together the Confidential Documents). Under the terms of the confidentiality order made by the Tribunal, the Confidential Documents were not disclosed to either Mr Koker or his legal representative in this proceeding; and
(h)Chapter 11 of the Citizenship Policy issued by the Minister’s Department and dated 1 June 2016 (Exhibit R8)
ISSUE
The issue in this proceeding is whether the Tribunal is satisfied that Mr Koker is of ‘good character’, as required by subsection 21(2)(h) of the Citizenship Act, to be eligible to become an Australian citizen.
BACKGROUND
In August 1979, Mr Koker was born in Sierra Leone and named ‘Augustine Charles Koker’. In 2013, Mr Koker changed his name to ‘Charles Augustine Koker’.[1]
[1] Exhibit R5, 25, page 161; 30, page 194; Exhibit R4, ST1, pages 1-8.
Mr Koker told the Tribunal under oath that he was an ‘activist’ in Sierra Leone and had to flee that country because he had become a ‘target’ and was threatened during the Civil War. This was a difficult time for Mr Koker and his family, with his father killed as a result of that internal conflict. After leaving Sierra Leone, Mr Koker went to Guinea and then Ghana.
On 12 October 2007, while in the Buduburam refugee camp in Ghana, Mr Koker lodged with the Department an ‘Application for an Offshore Humanitarian visa’ (class XB).[2] Mr Koker included two brothers and two sisters in the visa application, including a sister called ‘Mary Coker’ with a date of birth of 25 December 1995. Section 13 of the application said:
Give details of YOUR parents, brothers and sisters and non-dependent children. Include half, step and adopted relatives. (If not living or whereabouts unknown, write ‘DECEASED’ or ‘UNKNOWN’ in ‘Country where living’ column.)
[2] Exhibit R5, 54, pages 254-284.
In response to this request in the form for details of all of his relatives (including those not applying for a visa), Mr Koker listed the four siblings included in his visa application and two other siblings, plus his then fiancée, Esther Musu Seppeh. Mr Koker did not list a relative by the name of ‘Margret Coker’.[3]
[3] Exhibit R5, 54, page 259.
On 14 August 2009, Mr Koker arrived in Australia on a ‘Global Special Humanitarian visa’ (class XB subclass 202), having been proposed under the Community Support Program by an Approved Proposing Organisation.[4] By the issuing of this visa, Mr Koker became a permanent resident of Australia.
[4] Exhibit R5, 21, page 157; Exhibit R3, page 13.
In December 2009, Mr Koker lodged an application for an ‘Offshore Refugee and Special Humanitarian visa’ (class XB subclass 202) for his fiancée, Ms Seppeh, which was refused in August 2011.[5]
[5] Exhibit R5, 23, page 159.
In March 2011, Mr Koker lodged a ‘Refugee and special humanitarian proposal’ form as a sponsor for a Humanitarian visa for his mother, Marie Kailie Coker.[6] There were three dependents in the visa application, including Margret Coker with a date of birth of 20 November 1997.
[6] Exhibit R5, 55, pages 285-292.
In January 2012, Mr Koker again acted as sponsor for his fiancée, Ms Seppeh, to be granted an Australian visa by lodging a ‘Sponsorship for a partner to migrate to Australia’ form for a ‘Prospective Marriage visa’ (subclass 300).[7] There were three dependents in the visa application, but only one was the same as in the 2011 visa application, being Margret Coker with a date of birth of 20 November 1997. The other two dependents were Mr Koker’s mother and Ms Seppeh’s mother.
[7] Exhibit R5, 56, pages 295-316.
In March 2012, the Australian High Commission in Kenya wrote to Ms Seppeh regarding the ‘Prospective Marriage visa’ application, specifically it not being satisfied that she was in a relationship with Mr Koker.[8]
[8] Exhibit R3, T4, page 129.
On 15 March 2013, a class TO subclass 300 visa was granted to Margret Coker (with a date of birth of 20 November 1997). The visa permitted Margret Coker to remain in Australia until 15 December 2013 and was granted as a result of the ‘Prospective Marriage visa’ application lodged in 2012 and sponsored by Mr Koker, although his fiancée, Ms Seppeh, was not granted a visa pursuant to that application.[9]
[9] Exhibit R5, 49, page 249.
On 25 April 2013, a person purporting to be Margret Coker (with a date of birth of 20 November 1997) arrived in Australia on the class TO subclass 300 visa and completed an ‘Incoming passenger card’.[10]
[10] Exhibit R5, 48, page 248; 44, page 244; and 62, page 367.
On 3 May 2013, Mr Koker married Ms Seppeh in Australia. The Certificate of Marriage listed Ms Seppeh’s usual place of residence as the Buduburam refugee camp in Ghana.[11]
[11] Exhibit R5, 25, page 161.
On 25 May 2013, Mr Koker made a further application for his now wife, Esther Musu Koker, to be granted a visa by lodging a ‘Sponsorship for a partner to migrate to Australia’ form.[12] There were three dependents named in the visa application that were each then on a temporary visa in Australia, being Mr Koker’s mother, mother-in-law and his purported half-sister, Margret Coker. Mr Koker also completed a ‘Details of child or other dependent family member aged 18 years or over’ form for Margret Coker, who was said to be fifteen years old and born on 20 November 1997.[13]
[12] Exhibit R5, 28, pages 164-173.
[13] Exhibit R5, 59, pages 329-336.
On 26 May 2013, Esther Musu Koker completed an ‘Application for migration to Australia by a partner’ form.[14] Esther Musu Koker sought a Partner visa, which has two elements being a temporary visa (class UK subclass 820) and a permanent visa (class BS subclass 801). Three dependents were included in the application, being Esther Musu Koker’s mother, mother-in-law and Margret Coker. Mr Koker assisted his wife to complete the visa application and was its sponsor.[15]
[14] Exhibit R5, 38, pages 219-238.
[15] Exhibit R5, 38, pages 219-238; 4, pages 14-23.
On 29 May 2013, the Department sent two acknowledgement letters to Esther Musu Koker regarding her application for a temporary Partner visa (class UK subclass 820) for her and three dependents, one of whom was Margret Coker.[16]
[16] Exhibit R5, 1, pages 1-4; 2, pages 5-8.
On 4 June 2013, the Department sent an acknowledgment letter to Esther Musu Koker regarding her application for temporary and permanent Partner visas, which included three dependents, one of whom was Margret Coker.[17]
[17] Exhibit R5, 3, pages 9-13.
On 18 June 2013, the Department granted a temporary Partner visa (class UK subclass 820) to Esther Musu Koker and the three dependents, being her mother, mother-in-law and Margret Coker.[18] The temporary Partner visa was valid until the application for a permanent visa had been decided or withdrawn.
[18] Exhibit R5, 4, pages 14-23; 50, page 250.
On 24 September 2013, Mr Koker applied for Australian citizenship by conferral.[19] In answer to the question in Form 1300tEC, Application for Australian Citizenship by Conferral – General Eligibility (Electronic Lodgement), ‘Have you ever been involved in any activity, or been convicted of any offence, relating to the illegal movement of people to any country (including Australia)?’, Mr Koker answered ‘No’.[20]
[19] Exhibit R4, ST1, pages 1-8.
[20] ibid., page 6.
On 1 June 2014, Margret Coker completed a Form 424C, being a ‘Request for amendment or annotation to personal records’[21] (Form 424C), as follows:
[21] Exhibit R5, 63, pages 368-376.
(a)In response to the question: ‘Have you been known by any other names?’, Margret Coker marked the ‘Yes’ box and wrote ‘Mary Coker’.[22]
(b)The preferred method of communication is listed as being an email address using the words ‘Mary Koker’.[23]
(c)In response to the question: ‘Which departmental records or information do you believe are incomplete, incorrect, out of date, or misleading?’, Margret Coker wrote ‘Name and Date of Birth’.[24]
(d)The Form asked for ‘reasons why you believe the record or information are incomplete, incorrect, out of date, or misleading’, to which Margret Coker wrote:
The person that was supposed to come to Australia got pregnant and runaway so I was replaced for her, and my step mum did not know my date of birth or eaither [sic] knows a way to change it because the application was already in so we decided to leave it and find a way to change it when we get here, but when we get her she stated [sic] hating me for reason unknown calling me ungreatful [sic].
(e)In response to the question ‘What do you claim is the correct information?’, Margret Coker wrote ‘Mary Coker’, with a date of birth of 12 May 1992.[25]
(f)Margret Coker signed and dated Part E of the Form titled ‘Declaration’ which stated that, ‘I am aware that any person who provides false or misleading information, or who deceives or misleads, or who presents a forged document to an Australian Government official, may be prosecuted’.[26]
[22] ibid.,, page 370.
[23] ibid.
[24] ibid., page 371.
[25] ibid.
[26] ibid., page 372.
Margret Coker also attached the following documents to Form 424C:
(a)Primary School ‘Completion Record Card’ dated 22 August 2007 for ‘Kamara Coker Mary’, with a date of birth of 12 May 1992 and parents Ansu and Cecilia Kamara;[27]
(b)Diploma from Buduburam United Methodist School System awarded to ‘Mary K. Koker’, dated 24 July 2012;[28]
(c)Document containing ‘Form Teacher’s Remarks on Progress and Conduct’ issued for ‘Kamara Mary K’, with a date of birth of 12 May 1992;[29] and
(d)Document containing school grades which lists the ‘Pupil’s Age’ as ‘1992’.[30]
[27] ibid., page 373; 73, page 454.
[28] Exhibit R5, 63, page 374.
[29] ibid., page 375.
[30] ibid., page 376.
On 19 April 2015, Esther Musu Koker provided the Department with a ‘Record of Responses’ for the processing of her permanent Partner visa application. The document lists Margret Coker as a ‘Migrating family member’ with a date of birth of 20 November 1997.[31]
[31] Exhibit R5, 37, pages 201-218.
In July 2016, the Department received a letter from a social worker at the Department of Human Services dated 15 June 2016 in support of Margret Coker’s application for permanent residency. The letter noted that Margret Coker was expecting a child in July 2016.[32]
[32] Exhibit R5, 64, page 377.
On 27 October 2016, the Department sent Margret Coker a ‘Notification of Intention to Consider Cancellation (Notice Considering Cancellation) under section 109 of the Migration Act 1958 (Migration Act) and gave her the opportunity to comment on why her visa should not be cancelled.[33] This consideration related to the temporary Partner visa (class UK subclass 820) granted to Margret Coker on 18 June 2013. The notice stated that a delegate of the Minister considered that Margret Coker ‘did not comply with sections 101(b), 102(b) and 103 of the Migration Act’.[34] These provisions of the Migration Act require: correct answers in a visa application and passenger card;[35] and not giving a bogus document to an officer of the Department, the Minister, or other entities.[36] The Department stated that the information in Margret Coker’s Form 424C was ‘contrary to the information you provided in your Incoming Passenger Card dated 25 April 2013 and for your Form 47SP subclass 820 visa application’ from January 2012.[37] As a result, the Department said this indicated that:
· You are not the Margret Coker, date of birth 20 November 1997, who the Department granted a Partner (Prospective Marriage) (Subclass 300) visa on 15 March 2013.
· You took the identity of Margaret [sic] Coker at an undetermined time after lodgement of her Partner (Prospective Marriage) (Subclass 300) visa application on 13 January 2012.
· You took the identity of Margaret [sic] Coker for the issue of her DFTTA [Document for travel to Australia].
· You did not hold a valid visa to travel to Australia on 25 April 2013.
· You have been known as Mary K Koker and Kamara Coker Mary.
· Your date of birth is 12th May 1992.
· Your father is Ansm [sic] Kamara and your mother is Cecilia Kamara.
[33] Exhibit R5, 66, pages 382-410.
[34] ibid., page 391.
[35] Subsection 101(b) and 102(b) of the Migration Act 1958.
[36] Section 103 of the Migration Act 1958.
[37] Exhibit R5, 66, page 394.
On 14 November 2016, Margret Coker’s Migration Agent, Mr James Brown, responded to the Department’s Notice Considering Cancellation of her visa and attached a Statutory Declaration made by Margret Coker on 4 November 2016 (First Statutory Declaration), with the following statement explaining her Form 424C:[38]
I Margret Coker was told and mislead [sic] by a friend call Rose, to give the information I gave to the Immigration Department. I am the same person the visa was granted to, is just that I wanted the Mary name to be my first name instead of Margret. Margret has been my middle name all this while and Mary has been my fist [sic] name. I thought given that information could have help to have the Mary name as my first name.
[38] Exhibit R5, 68, page 427.
On 19 December 2016, Mr Brown provided further documentation in support of Margret Coker’s response to the Department,[39] including a birth certificate of Margret Coker for 20 November 1997 and a supplementary Statutory Declaration from his client made on 19 December 2016 (Second Statutory Declaration) that:[40]
[39] Exhibit R5, 70, pages 432-440.
[40] ibid., page 434.
My true Birth Name is Margret Coker
Date of Birth 20 November 1997
…
I was the same person that applied for visa 300 and now 820.
I was not substituted or changed for anyone
I did not take the identity of anybody
…
My name is not Mary K Koker and Kamara Coker Mary.
I was misguided and miss lead [sic] by the wrong friends and peers I hung out with when I arrived in Australia. They advised me that unless I change my name and increase my age I will not go out clubbing and drinking with them and have no boyfriends. I just wanted to drink, club and have a boy friend so I can fit in with my peers. Because I was under age, that was not going to be possible, I did it without telling either my brother or any other family member…
Contrary Subsequent Information on form 424c lodged on 5 June 2014 and reasons are not true (supporting documents provided are not legal documents and inconsistent).
On 6 January 2017, Mr Brown provided the Department with an ‘Attestation’ dated 23 May 2012 from the Sierra Leone High Commission in Ghana.[41] A photo was attached to this document and it was certified that ‘Margaret Koker’ with a date of birth of 20 November 1997 resided in the Buduburam refugee camp in Ghana.
[41] Exhibit R5, 71, pages 441-442.
On 11 April 2017, Mr Brown provided further documentation to the Department, including:[42]
(a)Junior Secondary School Report Book for the Year ‘2009/2010’ from Methodist Girls’ High School Freetown – Sierra Leone for ‘Kamara Mary K’, with a date of birth of 12 May 1992;
(b)Result Slip from Methodist Girls High School Wilberforce – Sierra Leone for ‘Kamara Mary K’ dated 29 October 2010;
(c)Primary School ‘Completion Record Card’ dated 22 August 2007 for ‘Kamara Coker Mary’, with a date of birth of 12 May 1992;
(d)Diploma from Buduburam United Methodist School System awarded to ‘Mary K. Koker’, dated 24 July 2012;
(e)Official Transcript and Testimonial for ‘Mary K Koker’ from Buduburam United Methodist School System dated 24 July 2012; and
(f)Report Card for Chambers Memorial R.E.C. Primary School for ‘Kamara Coker Mary’, listing the pupil’s age as ‘1992’.
[42] Exhibit R5, 73, pages 446-460.
On 18 May 2017, the Department sent a letter to Mr Brown in relation to Margret Coker, titled ‘Notification of Decision not to cancel under section 109 of the Migration Act’.[43] The Department said ‘there was non-compliance in the way described in the Notice of Intention to Consider Cancellation under section 109 of the Migration Act 1958 (section 107 notice)’, however it had decided not to cancel Margret Coker’s visa because it was satisfied that the considerations not to cancel (some of which are set out below) outweighed her non-compliance. In this regard, the accompanying Record of Decision stated that it considered ‘the visa holder has not complied’ with subsections 101(b), 102(b) and 103 of the Migration Act, and further said that:[44]
[43] Exhibit R5, 74, page 461-462.
[44] Exhibit R5, 75, pages 463-477.
I am satisfied the original school documents are genuine and issued to the named student…Although she claims not to be this student, she has not said how she came to have these school documents and what changes, if any, she made to them to support her Form 424C application.
…
I give significant weight to the information in the Form 424C and less weight to the subsequent response by the visa holder to the non-compliance detailed in the above Notice.
I find the visa holder’s response to the Notice dated 27 October 2016 unsatisfactory and unreliable…Having made the significant claim to the Department of being Mary Coker, date of birth 12 May 1992, the onus is on her to have provided a detailed explanation to address all the issues in the above Notice, which she has not done.
…
The correct information is the visa holder is either Mary K Koker or Kamara Coker Mary, date of birth 12 May 1992, or identities she has used in addition to her unknown real identity.
…
The circumstances in which the non-compliance occurred were the visa holder:
· Created a false identity to either apply for as a dependent visa applicant, or substitute herself for the intended dependent visa applicant, and be granted the subclass 309 visa and after she arrived in Australia, to be granted the subclass 820 visa.
· Used this false identity to obtain the DFTTA [Document for travel to Australia].
· Travelled to Australia on the bogus DFTTA and prior to her arrival on 25 April 2013, she completed an Incoming Passenger Card and provided it to the Department.
I am satisfied these circumstances were voluntary and within her control.
…
I am satisfied that if the visa is cancelled, it would be in breach of the CROC [Convention on the Rights of the Child] and ICCPR [International Covenant on Civil and Political Rights], and it is in the best interests of [her Child] to remain in Australia.
…
The departmental information indicates the Department would face numerous obstacles to obtain a travel document, and remove the visa holder to Sierra Leone. I am not satisfied her indefinite detention is not a possible consequence, if the visa is cancelled.
…
In view of the findings and assessment above, I have decided to not cancel the visa holder’s visa.
On 21 June 2017, the Department sent a letter to Mr Koker’s wife, Esther Musu Koker, inviting her to comment on information she provided in relation to her application for a Partner visa made in 2013, specifically the information regarding Margret Coker’s identity.[45] The letter stated that:[46]
[45] Exhibit R5, 6, pages 25-30.
[46] ibid., pages 25-26.
The Department has received information in relation to Ms Margret Coker’s identity that is contrary to the information you provided in the application forms for your combined subclass 820/801 visa application.
…
As there is evidence suggesting that Ms Margret Coker has provided, or caused to be provided, a bogus document and false or misleading information in relation to this visa application, she may fail to satisfy PIC 4020(1) [Public Interest Criterion 4020 in Schedule 4 of the Migration Regulations 1994], with the result that this visa application may be refused.
On 5 June 2014, Ms Margret Coker submitted a Form 424C stating that her real name is Mary Kamara Coker and that her real date of birth is 12 May 1992.
On 27 October 2016, the Department sent her a Notice of Intention to Consider Cancellation (NOICC) under section 109 of the Migration Act 1958.
Ms Margret Coker responded to the NOICC on 14 November 2016 with the statement retracting her previous claims, and stating that she was misled by her friend and that she was the same person who was granted the subclass 820 visa on 18 June 2013.
It therefore appears that you, Ms Coker, or someone on your behalf, gave or provided incorrect answers to question 32 of your Form 47SP visa application and incorrect answers to questions 4, 7, 9, 13, and 27 of Form 47A.
Ms Coker also appears to have given or provided incorrect answers in relation to her name, date of birth and travel document number on her Incoming Passenger Card completed on 25 April 2013.
Ms Coker also provided a bogus document, in the form of the DFTTA [Document for travel to Australia], to the Department when Ms Coker entered Australia on 25 April 2013.
It therefore appears that Ms Coker has provided false or misleading information about her identity, and that she has provided a bogus identity document.
On 17 July 2017, the Department received an email from Esther Musu Koker’s migration agent, Mr Mark Northam (who was then also providing immigration assistance to Mr Koker and Margret Coker, amongst others, and who represented Mr Koker at the Tribunal hearing) responding to the invitation to comment on the information provided in relation to her Partner visa application.[47] Mr Northam stated that:[48]
After arriving in Australia, and at the urging of friends and peers she wanted to socialise with, Margret Coker as previously admitted to the Department provided incorrect information on Form 424C regarding her name and date of birth in an attempt to be able to drink alcohol legally and go to clubs. Margret later came to regret this action and realised it was a foolish youthful mistake.
…
The singular issue in this case is whether the information about Margret Coker on the 820/801 partner visa information is correct or incorrect, and we submit that the body of evidence presented previously in connection with the proposed cancellation of Margret Coker’s 820 visa along with additional information provided with this submission clearly demonstrates that the information about Margret Coker included with the current partner visa application lodged by Ms Esther Koker is correct.
We submit that Margret Coker’s true name of Margret Coker and her true date of birth of 20 November 1997 was stated on all relevant places on forms 47SP, 40SP and 47A with the current application. It is reasonable and logical to conclude that the Department also believes that the true name of Margret Coker and her true date of birth of 20 November 1997 is true and accurate information given the choice not to cancel her visa and accept her admission that she had provided alternate incorrect information on form 424C…
Given these facts, we submit that in the case of the application under review, no false information or bogus documents were provided in relation to the name or identity of Margret Coker as her true name and true date of birth were provided in all relevant places, therefore we submit that the required element of deception or fraud does not exist in this case. As accepted by the Department previously, the only false information that was included was done so on Form 424C provided by Margret Coker previously on 5 June 2014, which does not form any part of the current partner visa application.
[47] Exhibit R5, 7, pages 31-102.
[48] ibid., pages 35-37.
On 8 January 2018, the Department sent a letter to Mr Northam requesting further information in order to consider Esther Musu Koker’s Partner visa application, including the provision of a National Police Check for Margret Coker.[49]
[49] Exhibit R5, 9, pages 103-110.
On 22 January 2018, Mr Northam responded to the Department’s request for information, including providing a National Police Certificate for Margret Coker with a date of birth of 20 November 1997 and aliases ‘Mary Kamara Koker’ and ‘Mary Kamara Coker’.[50] The Certificate stated that there was ‘no disclosable court outcomes’ recorded against these names.[51]
[50] Exhibit R5, 11, pages 111-130.
[51] ibid., page 121.
On 27 March 2018, Mr Northam provided further information to the Department in the form of an additional National Police Certificate for Margret Coker with the above-mentioned aliases and the inclusion of the date of birth of 12 May 1992 (together with 20 November 1997).[52] The Certificate confirmed there were ‘no disclosable court outcomes’.[53]
[52] Exhibit R5, 13, pages 131-135.
[53] ibid., page 135.
On 11 August 2018, Reverend James Kaifunbah of the Buduburam United Methodist Church wrote to the International Organization for Migration (IOM) stating that he was unable to verify the diploma of Mary K. Koker issued by the Buduburam United Methodist School System and attached to Margret Coker’s Form 424C.[54]
[54] Exhibit R5, 78, page 485.
On 24 October 2018, the Department sent Mr Koker an invitation to comment on adverse information in relation to his application for Australian citizenship by conferral.[55] The letter relevantly stated that:
[55] Exhibit R3, 6, pages 144-149.
Before I can approve you becoming an Australian citizen, I must be satisfied that you are of good character (as required under section 21 of the Australian Citizenship Act 2007 (‘the Citizenship Act’).
Relevant information
In considering your citizenship application, specifically in relation to the matter mentioned above, I will be taking into account the following information:
· The Department has received allegations that you are involved in the facilitation of migration outcomes and/or travel to Australia for African nationals in exchange for money.
· Of particular concern, in 2013 you acted as a Sponsor for a Partner (Prospective Marriage) (Subclass 300) visa for KOKER (new Seppeh), ESTHER MUSU (26/11/1989, F). On this application, one of the dependents was COKER, MARGRET (20/11/1997, F).
On 25/05/2013, you signed a ‘Form 47A – Details of child or other dependent family member aged 18 years or over’ in which you attested to her personal details. This form warned that giving false or misleading information is a serious offence and you signed to declare that the information supplied on the form was complete, true and up to date.
The person who arrived in Australia as the holder of this dependent visa was later found to be an imposter. Information held by the Department shows that the intended visa holder left the family unit in Sierra Leone after the grant of the visa, and was replaced by a woman with a similar name and biographical details for travel to Australia. Allegations received suggest that you were fully aware of the replacement, and have been complicit in arranging false identity documents to enable this person to travel to Australia.
At the very least, you have continued to act as Sponsor for this dependent visa. You have not declared or informed the Department of the above at any stage of processing.
· Cumulatively, this information gives rise to the issue of whether you meet the criteria for the grant of Australian Citizenship. Under Citizenship Policy, a person of good character would not practice fraud or deception in their dealings with the Australian Government, and would not be involved in breaches of immigration law.
On 7 November 2018, an Affidavit was made in Sierra Leone by Ms Cecilia Kenneh stating that she is the biological mother of Margret Coker, born on 20 November 1997; Margret Coker was living in Ghana with her sister-in-law, Esther Musu Koker, step mother, Marie Kailie Koker and her sister-in-law’s mother, Kaddie Jalloh, before they all travelled to Australia; and further that:[56]
Margret told me that she attempted to change her name when she arrived in Australia because she was influenced by her friends who told her unless she increases her age and change her name before she could have a boyfriend or go to a club because she was under age when she arrived in Australia. She told me that her visa was to be cancelled but immigration said they will not cancel her visa again. She said she did not tell her brother Charles Augustine Koker or any member of the family because she was afraid and ashamed of what she has done. As Margret’s mother, I want to state that I dont [sic] know of any other name for her but Margret Coker, born on 20th November 1997.
[56] Annexure 1 to Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions dated 9 August 2019.
On 28 November 2018, Mr Northam, as Mr Koker’s migration agent, responded by letter to the Department’s invitation to comment on adverse information.[57] The letter relevantly stated that:
Extensive information and statements were provided to the Department in response to a notice of intent to consider cancellation sent to Margret Coker on 27 October 2016. As part of the cancellation consideration, the Department expressed concerns about Margret Coker’s identity, apparently due to Margret’s mistaken attempt to be able to drink via lodging an incorrect Form 424C.
…
it is inconceivable how a legal finding that “the holder of this dependent visa was later found to be an imposter” has been made. Yet such a finding is claimed by the Department, with no documentary evidence or proof of such a finding being provided, and with Margret Coker still holding her properly granted subclass 820 visa.
[57] Exhibit R3, T4, pages 112-140.
Mr Northam attached multiple Annexures to his letter dated 28 November 2018, including a Statutory Declaration made by Mr Koker on the same date, a National Police Certificate for Mr Koker, five character references in the form of Statutory Declarations and the Affidavit from Ms Kenneh in relation to Margret Coker’s identity.[58] In his Statutory Declaration, Mr Koker stated that:[59]
I have never been involved in the facilitation of migration outcomes and/or travel to Australia for African nationals in exchange for money. I have only proposed or sponsored my family members to Australia in 2013 (Esther M Koker (previously Seppeh), Marie Kailie Coker, Kaddie Jalloh and Margret Coker). I have never been involved in any criminal activity, Fraudulent or Deceptive behaviour.
…
There was no replacement of anybody on the application form and all persons who arrived in Australia were the actual persons who applied for their respective visas from Ghana and not Sierra Leone.
I honestly state and declare that Margret Coker is my half sister (same father but different mothers). Her date of birth is 20/11/1997. She was the dependent I signed form 47A on her behalf because of her age. She was the same person that was applied for an arrived in Australia with this same identity. This is consistent with all my claims about family members including Margret made on all visa applications and my citizenship application.
…
I also want to state that during the prospective marriage visa application, their photographs were sent along with the application form. During their interview at the Australian High Commission’s office in Accra Ghana, their photographs were used to identify and match each applicant before she was interviewed. Their photographs were also presented during their medicals and each applicant was recognised and matched with their photosgraphs [sic] before and during their medicals. When their travel documents were ready, another sets [sic] of photographs were presented which was used to prepare their Document For Travel to Australia. The same Photographical identifications were presented to IOM for their travel identification before confirming each applicant to Travel to Australia. IOM Confirmed each applicant by the photos presented to them by the Australian High Commission in Nairobi, Kenya. Each photo would have the name of the applicant written at the back of the photograph. There was consistency and accuracy in all photo identification with officials through out and up to the granting of the visa. Even when the visa was granted, all documents were sent to IOM who were responsible for travel arrangements and they had to make sure that each photo matched the applicant. These procedures ensured that the person who applied for the visa was the same person who travelled on the visa after the visa was granted.
I am a person of Good moral Character. I have demonstrated integrity, uprightness and honesty in all my dealings with the department and the general Australian Community…
I have lived in Australia for over Nine years. I have made Australia my home. I have settled since I arrived in Australia as a refugee and making my own contribution to the Australian way of life. I work full time in the ACT Public Service, I would be completing my Social Science Degree in 2019, I am a minister of Religion or a Religious Marriage Celebrant. I am pastoring a local community church in Canberra, I am the coordinator for the Celebration of African Australians ACT Inc. and a father of three beautiful children. These are very sensitive positions that would only require a person of good character.
[58] Exhibit R3, T4, pages 121-128.
[59] ibid., page 121.
On 12 December 2018, the Department sent a request to Mr Northam for further information in relation to Esther Musu Koker’s Partner visa application, specifically ‘clearer copies of the documents of Ms Coker, Margret (20/11/1997) submitted with her 424C application’ and ‘the name and location of the school in Sierra Leone’.[60]
[60] Exhibit R5, 15, pages 136-141.
On 21 December 2018, Mr Koker submitted to the Department a ‘Change of Address Details’ form for Margret Coker.[61] Mr Koker also submitted a ‘Notification of changes in circumstances’ form and stated that ‘Margret Koker is an adult and currently has a child and living by herself independently’.[62]
[61] Exhibit R5, 16, pages 142-143.
[62] Exhibit R5, 17, page 145.
On 7 January 2019, Mr Northam emailed the Department a copy of a Statutory Declaration from Esther Musu Koker made on the same day, which stated that she did not have the requested clearer documents regarding Margret Coker’s Form 424C because they were ‘submitted by Margret independently, and were not part of any visa application lodged by myself including my previous subclass 300 Prospective Marriage Visa application or my current partner visa application’.[63] The Department’s request for the name and location of the school in Sierra Leone was not addressed.
[63] Exhibit R5, 18, pages 148-150.
On 21 January 2019, a delegate of the Minister refused Mr Koker’s application for Australian citizenship by conferral because the delegate was not satisfied that Mr Koker was a person of good character.[64] This is the decision under review by the Tribunal. The decision record relevantly stated that:
[64] Exhibit R3, T2, pages 10-22.
there is no evidence of systematic fraud that you are party to at this time. However, I give weight to the findings made by the department in regards to the facilitation of at least one person who was not the intended holder of an Australia visa, that is, the person who arrived in Australia in 2013 with a visa intended for a person by the name ‘Margret Coker’.
…
M [Margret Coker], who arrived in Australia as the holder of this dependent visa, was later found to be an imposter. Information held by the Department shows that the intended visa holder left the family unit in Sierra Leone after the grant of the visa, and was replaced by a woman with a similar name and biographical details for travel to Australia. Allegations received suggest that you were fully aware of the replacement, and have been complicit in arranging false identity documents to enable this person to travel to and remain in Australia.
You have provided a response to this letter denying the above information and making the following claims:
‘Margret Coker previously admitted to the department that she has provided incorrect information on the form 424C regarding her name and date of birth in an attempt to be able to drink alcohol legally and go to clubs.’
You have claimed that this was a youthful mistake made by M at the time…I find your statement to be an implausible explanation of the reason M’s initial statement (made on an official departmental form) was made and then retracted. I particularly find it implausible that you and/or M would treat such serious matters so flippantly, and try to explain these actions away as a youthful indiscretion. Further, your suggested reasons for the lodgement of the form do not correspond with the reasons the Department was provided at the time as to the need for the change in biographical details.
I find your explanation above weighs against your claims to good character as it is implausible that a person would go to the extent of communicating with a Federal government department through such official means as lodging a ‘Request for amendment or annotation to personal records’ for such trivial reasons when it would have been sufficient and less troublesome to apply for a name change through the ACT (state) government. Furthermore, updating a person’s name or date of birth in the department’s records would have minimal impact on any person’s ability to engage in any age restricted activities such as drinking alcohol or clubbing as you have claimed. The Department of Home Affairs does not issue any identity documentation with the exception of an ImmiCard which is issued to refugees/stateless applicants. Therefore, there would be no value in approaching the Department to have this information altered for the purpose which you have claimed.
…
As stated previously, the department holds information that the intended applicant had left the family unit in Sierra Leone and was replaced by a woman of similar name and biographical details. As you can appreciate, this is a serious claim that the department has investigated prior to taking any action, and making such a finding.
…
given the department’s findings that M is an impostor, I find it implausible that you would not be aware that a dependant listed on an application for which you held the role of Sponsor had been substituted for another person and was not the person that you initially listed as a dependant.
…
In your personal statement, you have claimed to never have been involved in criminal activity, fraudulent or deceptive behaviour. You have stated that M is your half-sister and that identity checking was undertaken appropriately to ensure that the visa applicant was the person that arrived in Australia. You have described the several stages at which identity of each applicant has been verified. I acknowledge that these identity checking mechanisms have been implemented by the department to ensure the integrity of the Australian visa program. The fact that M’s identity was questioned is not proof that she is the intended visa holder; rather it is proof that these checking mechanisms work effectively and the Department has done due diligence before making a finding that M is an imposter. It raises serious concerns about you and suggests a significant level of planned fraud where you have attempted to circumvent rigid checking mechanisms put in place to eliminate the risk of fraud such as this taking place.
On 22 January 2019, Mr Koker submitted a further ‘Notification of changes in circumstances’ form in relation to Margret Coker, as follows:[65]
I want to state that Margret Coker is no longer a “member of the family unit” and no longer a dependent, hence no longer eligible to remain on this visa application.
Margret Coker is an adult. She is working and Living by herself. I Cannot make Decision for her Neither do I have control over her actions, hence cannot take responsibility for her.
Margret Coker is Completely independent and having her own relationship.
[65] Exhibit R5, 17, page 144; 19, page 151.
On 25 January 2019, Margret Coker completes a ‘Withdrawal of a visa application’ form to withdraw her temporary Partner visa application sponsored by Mr Koker.[66]
[66] Exhibit R5, 20, pages 152-156.
On 11 February 2019, Mr Koker applied to the Tribunal for review of the decision to refuse his application for Australian citizenship by conferral.[67] The decision was said to be wrong because it ‘is based solely on unproven assumptions and allegations regarding the identity of the applicant’s half-sister Margret Coker for which no evidence was provided’.[68]
[67] Exhibit R3, T1, pages 1-9.
[68] ibid., page 7.
On 13 June 2019, Margret Coker made her Third Statutory Declaration (Exhibit A3), that:
I arrived in Australia 2013 as a dependent child under my sister in law. A few months after our arrival, I was faced with cultural shock and left my brother’s house and joined the wrong friends to socialise. I wanted to fit in with my peers but my age was a barrier and I did not know what to do. I was misled to change my name and age to fit in and be able to go clubbing with my friends. I sent money to Ghana and asked a friend to send me any documents to change my name and age so I can fit in with my friends.
My friends directed me to the immigration saying that it’s the only way to change my date of birth and name. I filled out form 424C trying change my identity details on wrong advice. I was misled and did not know about the consequence of my action until later. At the end I realize I have made a mess of myself after I told others of what I have done. I still regret my actions. It’s the biggest mistake I have made in my life and I sincerely apologise for my actions.
…
I was the same person that applied for the 300 and 820 Visa. I was never a replacement. I was the right person that arrived in Australia. The information I provided on form 424C were not correct and the documents I submitted with that form were not authentic. I take responsibility and regret my actions.
On 14 June 2019, Mr Koker made a second Statutory Declaration (Exhibit A2), that:
The person who arrived in Australia as Margret Coker, my half-sister, is indeed Margret Coker. This is the same person I have known as my half-sister for many years, is the same person who was dependent on my wife’s Prospective Marriage (subclass 300) visa application in 2013, and who was a dependent on my wife’s Partner Visa application.
I have been made aware that when she was a child under 18 years old, Margret Coker lodged some false documents and incorrect information with the Immigration Department where she attempted to change her age and told some story about being a “replacement”. I had no part in this action and had no knowledge of this action by Margret at the time. I fully accept Margret’s explanation that her action was a foolish teenage mistake done in a misguided attempt to appear old enough to socialize and drink alcohol with a group of people she later regretted associating with. I accept that Margret, like many teenagers, was susceptible to peer pressure that resulted in her making a youthful mistake, and I believe Margret has learned from and deeply regrets her mistake based on conversations I have had with her recently and her statement to the Tribunal.
I completely reject the allegations that there has been any sort of “replacement” of my half-sister Margret Coker or that the person in Australia now is an “imposter”. I state categorically and for the record that the person in Australia is in fact Margret Coker, my half-sister.
On 12 November 2019, Margret Coker made a Fourth Statutory Declaration (Exhibit A4), that, amongst other things:
My teenage friends missled [sic] me to alter my immigration records my changing my name and date of birth….None of my family members knew about anything. I did not tell them including my brother, Charles Koker.
LEGISLATION & POLICY
Citizenship Act
The Preamble to the Citizenship Act states that:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Part 2 of the Citizenship Act sets out the manner in which a person can become an Australian citizen. Division 2 of Part 2 provides for the acquisition of Australian citizenship by application and Subdivision B of Division 2 sets out how a person is eligible for citizenship by conferral.
Section 20 in Subdivision B of the Citizenship Act relevantly states that a person becomes an Australian citizen under Subdivision B if the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen.
Subsection 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of the Citizenship Act states that if a person makes an application for Australian citizenship by conferral under section 21, the Minister ‘must, by writing, approve or refuse to approve the person becoming an Australian citizen’. Subsection 24(1A) relevantly states that the Minister ‘must not approve the person becoming an Australian citizen’ unless the person meets the eligibility requirements to become an Australian citizen set out under subsection 21(2) of the Citizenship Act.
Subsection 21(2) of the Citizenship Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied of a number of matters in relation to the person, including that: they are aged over eighteen at the time of the application; they are a permanent resident both when making the application and at the time of the Minister’s decision; and they satisfy the residence requirements under the Citizenship Act. Relevantly for this proceeding, subsection 21(2)(h) of the Citizenship Act states 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’.
Subsection 52(1)(b) of the Citizenship Act permits a person to make an application to the Administrative Appeals Tribunal for review of a decision under section 24 to refuse to approve the person becoming an Australian citizen.
Citizenship Policy and Citizenship Procedural Instructions
The Tribunal ordinarily applies policy guidance from the government in reviewing a decision, unless cogent reasons are demonstrated for it not to do so.[69] The Minister’s Department has issued a Citizenship Policy document dated 1 June 2016 (Exhibit R8). The Tribunal is not aware of any reasons why it should not take the Citizenship Policy into consideration in this proceeding. Chapter 11 of the Citizenship Policy provides guidance ‘on the administration of the “good character” provisions under the Act and to define, for administrative purposes, the meaning of “good character”’.[70] The Citizenship Policy states that ‘Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are “satisfied”, on a reasoned basis that an applicant is, or is not, of good character’.[71] The Citizenship Policy further states that:[72]
‘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 other commitments made through the pledge should they be approved for citizenship.
[69] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
[70] Exhibit R8, page 144.
[71] ibid.
[72] ibid, page 145.
The Citizenship Policy provides that the term ‘enduring moral qualities’ means: ‘characteristics which have been demonstrated over a very long period of time’; ‘distinguishing right from wrong’; and ‘behaving in an ethical manner, conforming to the rules and values of Australian society’.[73] Additionally, the Citizenship Policy says[74] the ‘good character’ requirement ‘looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics’ and:
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.
[73] ibid.
[74] ibid, pages 145-146.
The Citizenship Policy relevantly provides that an applicant of ‘good character’ would:[75]
[75] ibid, page 147.
·respect and abide by the law in Australia…
·be honest…
·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…
·not be the subject of any verifiable information causing character doubts
…
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
The Citizenship Policy also provides that decision makers should incorporate the following steps when preparing a decision in relation to good character:[76]
·identify any offence or other reason why the person may not be of good character
·summarise the nature of the offence/incident, its seriousness, victims, other matter
·identify any mitigating factors and summarise them
·analyse any references and identify the weight given to each of them
[76] Exhibit R8, page 156.
The Citizenship Policy sets out the following guidance on an applicant’s character:[77]
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble [to the Citizenship Act], and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia’s community standards
·does the applicant share Australia’s democratic beliefs and respects its rights and liberties.
[77] ibid, pages 149-150.
In relation to references provided in support of an application for citizenship, the Citizenship Policy provides that:[78]
Referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
[78] Exhibit R8, page 155.
Chapter 15 of the Citizenship Procedural Instructions (Exhibit R2) issued on 17 April 2019 by the Minister’s Department (Citizenship Instructions) ‘provides guidance on relevant matters to be taken into account when making a decision as to whether a person is of ‘good character’ for the purposes of the Act’.[79] Paragraph 4.4 of the Citizenship Instructions relevantly states that:
[79] Exhibit R2, paragraph 2.1.
As a general proposition, a person who is of good character would:
·respect and abide by the law in Australia and other countries;
·be honest…
·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 applications;
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…
…
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/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 wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.
COMMON LAW
The term ‘good character’ is not defined in the Citizenship Act, however the Courts and the Tribunal have provided the following guidance. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Irving), the Federal Court of Australia noted at [94] that:
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 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.
In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 (Fenn), the Tribunal stated at [8] that:
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.
In Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132, the Tribunal said at [14] that:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
CONTENTIONS
Mr Koker
Mr Koker’s representative told the Tribunal that the subject matter of the hearing was narrow. It was based on character and, in that regard, it was contended that Ms Koker is of good character. It was not in dispute between the parties that Mr Koker meets all of the other requirements to be eligible for Australian citizenship by conferral under the Citizenship Act.
It was acknowledged, at hearing and in Mr Koker’s written submissions, that the Minister contends that Mr Koker is not of good character because of the allegation that he knowingly facilitated the arrival of an unlawful person under the name of ‘Margret Coker’, whom the Minister contends is an imposter. [80]
[80] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions dated 9 August 2019, pages 2-3.
In response, Mr Koker contended that: ‘No evidence of this alleged ‘substitution is provided’ and he ‘strongly and emphatically rejects the allegation that Margret Cocker is an “imposter” and states categorically that she is Margret Coker, his half-sister, the same person he knew for many years prior to the family migrating to Australia’.[81]
[81] ibid., page 3.
Mr Koker’s representative said the evidence demonstrated that the person who arrived in Australia in 2013 and appeared before the Tribunal was Margret Coker. It was contended that, because a delegate of the Minister in the reviewable decision before the Tribunal had made a finding that the person claiming to be Margret Coker was not in fact that person, a clear decision had been made about her identity that placed the Tribunal in a binary situation where, if the Tribunal did not accept the Minister’s contention regarding Margret Coker’s identity, the Tribunal should find in favour of Mr Koker. The onus was said to be on the Minister to show what evidence led to the finding regarding the identity of Margret Coker.
Mr Koker submitted that Margret Coker ‘age 16 at the time, lodged Form 424C in an attempt to have her date of birth changed on Department records’.[82] However, it was further contended that Mr Koker:[83]
is an upstanding member of his community and has an unblemished character record since entering Australia and before. He rejects the allegation that Margret Coker is an “imposter” and submits that Margret’s misguided attempt as a teenager to “fake” her date of birth in order to be able to participate in social activities, a mistake she now acknowledges fully, should not rise to the level of impugning his character.
[82] ibid., page 2.
[83] ibid., page 3.
It was contended on behalf of Mr Koker that the evidence showed that the person who arrived in Australia is Margret Coker and that, if this was accepted by the Tribunal, Mr Koker should be found to be of good character because he did not facilitate the unlawful arrival of a person who is not Margret Coker.
The Minister
The Minister’s representative agreed with Mr Koker’s contention that there was one issue in the proceeding, being whether the Tribunal is satisfied that Mr Koker is of good character for the purposes of the Citizenship Act. The Minister contended that Mr Koker is not of good character in circumstances where he engaged in conduct to facilitate unlawful migration outcomes.
In this regard, the Minister submitted that Mr Koker facilitated the entry into Australia on 25 April 2013 of a person who claimed to be his half-sister, Margret Coker born on 20 November 1997. That person used two visas sponsored by Mr Koker to first enter into, and then remain in, Australia.[84] These visas were:
(a)A class TO and subclass 300 – Prospective marriage visa granted by the Minister to Margret Coker on 15 March 2013; and
(b)A Partner (Temporary) (class UK) Partner (subclass 820) visa granted by the Minister to Margret Coker on 18 June 2013.
[84] Exhibit R1, Minister’s Statement of Facts, Issues and Contentions dated 13 September 2019, page 12.
It was contended that Mr Koker provided false information to the Department on numerous occasions in relation to the person claiming to be Margret Coker. Because of this conduct, Mr Koker was said to not be of good character at this time, noting the documentary evidence indicating the person claiming to be Margret Coker is in fact a different person (known as ‘Mary Coker’) with a different date of birth (12 May 1992). In relation to the claimed false information, the Minister submitted that:[85]
in the Prospective Marriage Visa Application, the Applicant falsely provided information that he was sponsoring “Margret Coker” with DOB of 20 November 1997;
in the Partner Visa Application, the Applicant falsely provided information that he was sponsoring “Margret Coker” with a DOB of 20 November 1997;
in Form 47A (submitted with the Partner Visa Application), the Applicant falsely attested that the person included in the Partner Visa application was “Margret Coker” with a DOB of 20 November 1997; and
in a statutory declaration declared on 28 November 2018 submitted to the Department and relied on by the Applicant in this application, the Applicant again provided false information in relation to “Margret Coker”, with a DOB of 20 November 1997.
[85] ibid, page 17.
The Minister contended that because Mr Koker provided false information to the Department, Mr Koker facilitated the entry of an imposter into Australia, with the real Margret Coker being replaced by an individual with the name ‘Mary Coker’ and date of birth of 12 May 1992. This individual was said to have travelled to Australia on a travel document that was not intended to be granted to her, but rather was granted to Margret Coker with a date of birth of 20 November 1997. The Minister contended that because Mr Koker facilitated this unlawful migration outcome, the Tribunal cannot be satisfied that Mr Koker is a person of good character, which is required in order to be eligible for Australian citizenship under subsection 21(2)(h) of the Citizenship Act. Additionally, the Minister said that the seriousness of Mr Koker’s conduct is aggravated by his ongoing denials of this conduct.
The Minister also referred to ‘the inconsistent and contradictory evidence’ in relation to the identity of Margret Coker, which creates significant doubt in relation to Mr Koker’s claims that the real Margret Coker entered Australia on 25 April 2013. In this regard, the Minister noted that ‘the person claiming to be Margret Coker is in possession of school records that inconsistently identify her as ‘Kamara Coker Mary’, ‘Mary K Koker’ or ‘Kamara Mary K’ (DOB of 12 May 1992)’.[86] The Minister further said that the person claiming to be Margret Coker has made inconsistent statements to the Department, including in statutory declarations, as follows[87]:
in her Form 42C, she claimed to be an imposter (with the real name of Mary Coker, DOB 12 May 1992) who was switched for the real Margret Coker prior to arriving in Australia;
in a statutory declaration declared on 4 November 2016, she recants from this statement, noting that the reason she tried to change her details was to use her preferred first name of Mary; and
in a further statutory declaration declared on 19 December 2016, she provides a different and inconsistent excuse, noting that the reason she tried to change her details was to increase her age so she could drink in licensed venues.
[86] Exhibit R1, Minister’s Statement of Facts, Issues and Contentions dated 13 September 2019, page 17.
[87] ibid., page 18.
The Minister contended that, while the identity of the person claiming to be Margret Coker is relevant, it was not the role of the Tribunal in this proceeding to undertake a comprehensive identity assessment in order to verify the identity of the person claiming to be Margret Coker. It was submitted that the Tribunal cannot be satisfied on the totality of the evidence that the person claiming to be Margret Coker is Margret Coker. The Minister contended that this person was not Margret Coker, but a person named ‘Mary Coker’ with a date of birth of 12 May 1992. It was contended in the alternative that, even if the Tribunal was not satisfied that the evidence demonstrated that the person claiming to be Margret Coker was not that person, the evidence raised questions about her identity that are not settled.
As a result, it was said that the Tribunal could not be satisfied that Mr Koker is of good character because the Tribunal cannot be satisfied of Margret Coker’s identity and he had facilitated the entry into Australia of that person.
The Minister noted that dishonest conduct in relation to migration outcomes has been considered by the Tribunal as serious conduct and that the Tribunal should find that Mr Koker’s conduct in facilitating unlawful migration outcomes and providing false information to the Department over a sustained period of time weigh heavily against a finding that he is of good character. To this end, the Minister cited May and Minister for Immigration and Multicultural Affairs [2000] AATA 480 at [84] (May), in which the Tribunal said:
The Australian community has every reason to send a very strong deterrent message to any such non citizens contemplating engaging in such cynical immigration malpractice that if detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country.
The Minister also referred to Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35] (Lachmaiya),[88] which further emphasised the nature of this serious conduct, as follows:
The observance of truth in dealing with officials in migration matters (particularly when the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications…Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.
[88] Cited with approval in Setiawan and Minister for Immigration and Border Protection [2014] AATA 682 and Kim and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 239.
The Minister further referred to paragraph 4.4 of Chapter 15 of the Citizenship Instructions, which note that a person of good character would not be involved in conduct such as Mr Koker, that is, ‘material deception during visa and citizenship applications, evading 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’.[89]
[89] Exhibit R1, Minister’s Statement of Facts, Issues and Contentions dated 13 September 2019, page 19.
The Minister contended that due to the seriousness of Mr Koker’s conduct in facilitating unlawful migration outcomes with respect to the entry of an imposter into Australia, aggravated by his continued denials of such conduct and provision of false information to the Department, the Tribunal cannot be satisfied that he is of good character for the purpose of subsection 21(2)(h) of the Citizenship Act and he is accordingly not eligible for citizenship pursuant to subsection 24(1A) of the Citizenship Act. The Minister also contended that any mitigating factors in relation to Mr Koker’s conduct are outweighed by the history of his behaviour. Therefore, the Minister submitted the Tribunal should, in accordance with subsection 43(1)(a) of the AAT Act, affirm the decision under review to refuse to grant Mr Koker Australian citizenship.
CONFIDENTIAL DOCUMENTS
In May 2019, the Minister applied to the Tribunal for a confidentiality order in this proceeding in relation to the two Confidential Documents filed with the Tribunal (being ‘Confidential Document 1’ and ‘Confidential Document 2’, Exhibits R6 and R7 respectively).
On 17 May 2019, the Tribunal made an order pursuant to subsection 35(4) of the AAT Act, prohibiting disclosure of the Confidential Documents to any person other than staff and members of the Tribunal and staff of the transcription services provider engaged for the hearing of this proceeding. As a result, the Confidential Documents were not disclosed to Mr Koker or his legal representative.
The Tribunal notes that subsection 35(5) of the AAT Act sets out that, when considering making a confidentiality order, the Tribunal is to take as the basis of its consideration the principle that it is desirable that the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties. While the content of the Confidential Documents is necessarily not disclosed in the Tribunal’s decision as a result of its confidentiality order, the letter of 15 May 2019 from the solicitors for the Minister requesting the Tribunal make such an order was copied to Mr Northam on behalf of Mr Koker. The Tribunal is therefore satisfied that it can set out the following relevant excerpts of that letter, including in light of the objective under subsection 2A(d) of the AAT Act to promote public trust and confidence in the decision-making process of the Tribunal:
the Confidential Documents comprise records of tip-offs in relation to the Applicant’s conduct that is referenced in the [delegate’s] Decision Record…
The Confidential Documents were taken into evidence by the Tribunal at the hearing, but apart from the Minister’s representative offering to make submissions in relation to the Confidential Documents at hearing, which was not required by the Tribunal, these documents (or the reference to their content in the letter from the Minister’s representative of 15 May 2019) were not referred to during the course of the hearing. The Tribunal has however given careful consideration to that material in reaching this decision.
CHARACTER REFERENCES
In support of Mr Koker’s application for Australian citizenship, and specifically in response to the Department’s concerns regarding his character, five character references were provided to the Department in November 2018 in the form of statutory declarations.[90]
[90] Exhibit R3, T4, pages 124-128.
Mr Andrew Kazar, the Community Development Program Team Leader at Migrant and Refugee Settlement Services in the ACT (MARSS), made a Statutory Declaration on 30 October 2018, and stated that he had known Mr Koker for six years during which time Mr Koker was the Secretary General for the Sierra Leone Community in Canberra and subsequently a volunteer with MARSS. Mr Kazar described Mr Koker as ‘a great charismatic, energetic and dynamic leader’ and someone who was ‘humble and respected in his local community and the general African Community in Canberra’. Mr Kazar further stated that he was ‘not aware of any criminal history of Mr Koker’ and knows him ‘to be of good character, moral integrity, uprightness and a good statesman’ and recommended he be conferred with Australian citizenship.[91]
[91] ibid., page 124.
Mr Kui Foon Wong, Chair of the Canberra Multicultural Community Forum Inc. (CMCF), made a Statutory Declaration on 27 October 2018, and stated that he had known Mr Koker for over six years during which Mr Koker registered the Sierra Leone Community organisation as a member of the CMCF. Mr Wong said the CMCF fully supported Mr Koker’s application for Australian citizenship and that he would ‘make a model citizen, he is a man of good character and we have no knowledge of any criminal offence or crime committed by him’.[92]
[92] ibid., page 125.
An unsigned and undated Statutory Declaration was provided for Mr Glenn Flanagan, Team Leader Training and Community Development at Companion House, in which he confirmed its support for Mr Koker’s application for Australian citizenship.[93] Mr Flanagan said that Mr Koker ‘has devoted hundreds of hours of his time selflessly to supporting community members and supporting the successful settlement of newly arrived people in Australia’. Mr Flanagan stated that Mr Koker ‘is a person of excellent character’, being ‘open minded, trustworthy and transparent’ and he did not know ‘of any criminal history’.
[93] ibid., page 126.
Mr Nic Manikis, Director of the National Multicultural Festival, made a Statutory Declaration on 25 October 2018, in support of Mr Koker’s application for Australian citizenship.[94] Mr Koker was said to be responsible for coordinating the ‘African village’ component of the Festival and was ‘making an effective positive contribution to the settlement experiences of many Canberrans who are new arrivals to our city’. Mr Manikis said that he was ‘not aware Mr Koker has any past convictions or criminal history’ and considered him to be ‘of good character and sound judgement’.
[94] ibid., page 127.
Mr John Gunn of Multicultural Youth Services (MYS) made a Statutory Declaration on 30 October 2018 and said that he had worked with Mr Koker for over eight years ‘to support young refugees to settle in Australia’.[95] MYS has ‘relied on Charles to organise community participation in MYS activities for young people, to prepare refugee teams for our MYS annual Refugee Week World Cup football competitions, to teach and coordinate community members’ music and dance performances, amongst other things. Mr Gunn stated that Mr Koker ‘has been very successful in supporting others to address the challenges of adjustment including inter-generational conflict and domestic violence’; he is a pastor in his church; and a role model and mentor for young people and families new to Australia. In this way, Mr Gunn said that he was ‘very delighted to support Charles’ application for Australian Citizenship’.
[95] ibid., page 128.
The Minister contended that the character references submitted by Mr Koker do not address his conduct of facilitating unlawful migration outcomes and therefore should be given little weight by the Tribunal.[96]
WITNESSES
Mr Koker
[96] Exhibit R2, page 19.
Examination-in-chief
Mr Koker appeared and gave evidence under oath before the Tribunal. He confirmed that he is a citizen of Sierra Leone and a permanent resident of Australia.
Mr Koker was taken to his Statutory Declarations made on 28 November 2018[97] and 14 June 2019[98] and he confirmed adherence to those declarations. Specifically, Mr Koker confirmed his understanding, detailed in the first of his Statutory Declarations, regarding the process involved in the checking of photographs by the Australian High Commission and the IOM for a person going through the humanitarian resettlement process in the Buduburam refugee camp in Ghana.
[97] Exhibit R3, T4, pages 121-122.
[98] Exhibit A2.
Mr Koker said he had no documents at the Buduburam refugee camp and arrived in Australia without any documentation because of the Civil War in Sierra Leone. As a result, Mr Koker was provided with identification by the Australian Government, through the High Commission in Ghana, to travel to Australia.
Mr Koker said that, while he was in the refugee camp in Ghana, he assisted young people to address their experiences during both the Civil War and at the refugee camp and to support them through the associated trauma.
Mr Koker said he is a youth worker, assistant pastor at the Christian Revival Assembly, co-ordinator of the Celebration of African Australians and a marriage celebrant. Mr Koker also coordinates the African-Australian Soccer Tournament. Mr Koker was also, until recently, employed for eight years at the youth justice centre in Canberra. This was said to involve a very detailed recruitment process. Mr Koker said no one expressed any concern about his character during this employment. In addition, Mr Koker said his various community roles placed him in a position of responsibility that required trust, confidentiality, professionalism and character. No one was said to have questioned Mr Koker’s character throughout him holding multiple positions in the community.
Mr Koker was taken by his representative to his visa application made in 2007, which contained a person called ‘Mary Coker’ with a date of birth of 25 December 1995.[99] Mr Koker said this person was his half-sister whom he was reunited with at the refugee camp in Ghana; they shared the same father. The 2007 application was unsuccessful; however the people in this application were said to have received a scholarship to attend school in Ghana and were therefore not included in Mr Koker’s future visa applications.
[99] Exhibit R5, 54, page 254-283.
Mr Koker said he did have a half-sister named Margret Coker, born on 20 November 1997. This was said to be the same person who attended the Tribunal hearing.
Mr Koker was taken to the Affidavit of Cecilia Kenneh, being Margret Coker’s biological mother, made on 7 November 2018, regarding Margret Coker’s identity.[100] Mr Koker confirmed his belief that the detail in the Affidavit was correct.
[100] Annexure 1 to Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions dated 9 August 2019.
Mr Koker was also taken to a letter of ‘Attestation’ from the Sierra Leone High Commission dated 23 May 2012, which contained a picture of a person said to be ‘Margaret Koker’ born in Sierra Leone on 20 November 1997 and residing at the Buduburam refugee camp in Ghana.[101]
[101] Exhibit R5, 71, page 442.
Mr Koker said he recalled meeting his half-sister, Margret Coker, when she was born and up until she was approximately two years old in Sierra Leone. He did not see Margret Coker until 2011 when he returned to Ghana to introduce his family to his then fiancée, Esther Musu Seppeh.
Mr Koker said he met Margret Coker and the other dependents on the Prospective marriage visa application of his fiancée when they arrived at the airport in Australia in April 2013. Mr Koker referred to these people holding an IOM bag provided by an IOM officer containing their identification documentation. Mr Koker said the IOM personnel transferred these people to Mr Koker on their arrival to Australia.
Mr Koker said they were working with IOM personnel in the refugee camp, including organising medical examinations. The identification of the bias recipients was verified by IOM against the information provided by the Australian High Commission in Ghana. IOM was said to be involved in the process from the start of the application until the visa holders arrived in Australia.
Mr Koker’s representative put questions to Mr Koker regarding the processes of IOM, including its verification of individual applicants throughout a migration process. This line of questioning was objected to by the Minister’s representative because it was outside the scope of Mr Koker’s statements before the Tribunal and would involve speculation about processes of which there was also no evidence before the Tribunal. Mr Koker’s representative stated that these questions were relevant because the case centred on a substitution that would have had to have occurred during a period when the IOM were involved in processing a person who arrived in Australia purporting to be Margret Coker. After a discussion between the Tribunal and the representatives, Mr Koker was taken to his Statutory Declaration of 28 November 2018, which referred to the role of IOM at the refugee camp in verifying photographs as part of the visa application process. Mr Koker said his experience was that IOM contacted him as a refugee regarding the grant of a visa, and any required interview or medical examinations as part of the visa application process; IOM held the information from the Department and notified him of the travel date. At that time, a further meeting with IOM was held to confirm documentation before transfer to the airport, accompanied by IOM who ensured he was in the plane; he was then handed an IOM bag with his travel documentation that was held through the transit points and only opened upon arrival in Australia. Mr Koker confirmed that someone from IOM met him on arrival in Australia. Mr Koker also said there was an IOM person at the airport when Margret Coker and the other dependants on that application arrived in Australia. Mr Koker said this IOM person had contact with Margret Coker and the travelling party.
Mr Koker was referred to the ‘Document for travel to Australia’ for Margret Coker issued by the Australian Government,[102] which contained a photograph of a young woman. Mr Koker said that this person was Margret Coker who arrived in 2013. Mr Koker said he recognised Margret Coker because he had seen her in 2011 when he returned to Ghana.
[102] Exhibit R5, 5, page 24.
Mr Koker confirmed that he sponsored Margret Coker as part of the Partner visa application granted to his now wife and dependents. Mr Koker told the Tribunal that he was first aware that Margret Coker had submitted a Form 424C to the Department seeking to change her name and date of birth when he checked the status of the Partner visa application online through an Immigration Department website and realised that instead of listing Margret Coker, it incorrectly listed ‘Kamara Mary Coker’. Mr Koker was very concerned. He contacted the Department and the name was subsequently changed back to Margret Coker.
Mr Koker was taken to Form 424C completed by Margret Coker and the section regarding her being a replacement for a person that was supposed to come to Australia.[103] Mr Koker denied that any of the information in this section was true.
[103] Exhibit R5, 63, pages 368-376.
In relation to the photographs on the Primary School Completion Record Card from 2007[132] and the Application for migration to Australia by a partner from 2012[133], Margret Coker said they were the same photographs and agreed, despite the dates of the respective documents, that there was not a five year gap between the photographs because they were the same.
[132] Exhibit R5, 63, page 373.
[133] Exhibit R5, 58, page 328.
Tribunal Questions
After re-examination by Mr Koker’s representative, the Tribunal asked Margret Coker whether she replaced someone else called Margret Coker as set out in her Form 424C submitted to the Department. Margret Coker denied that this had occurred. She also denied withdrawing her statement in Form 424C because the Department had initiated a cancellation process in relation to her visa.
The Tribunal asked Margret Coker whether she knew where the purported fraudulent documents were in the refugee camp because they were her documents and she is ‘Kamara Mary Coker’, known as ‘Mary Coker’. Margret Coker said ‘No. So this was a school that was closing down they had…it’s for refugee kids and they were closing down, so yeah.’
Margret Coker said she did not know anyone called ‘Kamara Mary Coker’ and that she was not related to anyone by that name; she only knows that her step-father’s surname is ‘Kamara’.
Finally, the Tribunal asked Margret Coker whether Mr Koker told her to inform the Department, the Tribunal and any other entities that she was ‘Margret Coker’ and not ‘Kamara Mary Coker’, despite her statement in Form 424C. Margret Coker said ‘No’.
CONSIDERATION
The Tribunal is not satisfied that Mr Koker is of ‘good character’ as required by subsection 21(2)(h) of the Citizenship Act to be eligible to become an Australian citizen. It was not in dispute between the parties that Mr Koker meets all other requirements to be eligible for Australian citizenship under subsection 21(2) of the Citizenship Act. However, at this time, the Tribunal is not satisfied that Mr Koker has met the requirement to be of good character in order to be eligible for conferral of Australian citizenship. This finding centres on the identity of the person who entered into Australia as Mr Koker’s half-sister, Margret Coker and Mr Koker’s role in that migration.
Identity of person claiming to be ‘Margret Coker’
Mr Koker claims that the person who entered into Australia using the visa granted to Margret Coker born on 20 November 1997 is that same person. The Tribunal is not satisfied, on the totality of the evidence, that this contention can be supported. There is inconsistent evidence regarding the identification of the person who entered Australia using the name ‘Margret Coker’ in April 2013. The person in Australia under the name ‘Margret Coker’ herself declared to the Department that she is ‘Mary Coker’ with a date of birth of 12 May 1992. Other aliases in the documentation before the Tribunal are: ‘Mary K Koker’ and ‘Kamara Coker Mary’. The Tribunal is satisfied that the evidence demonstrates there are two separate individuals: Margret Coker born on 20 November 1997 and Mary Coker born on 12 May 1992. Mr Koker claimed that the person in Australia is the former, being Margret Coker. The Minister submitted that she is the latter, being Mary Coker. The Tribunal accepts the evidence of the Minister and is not satisfied that the person in Australia is Margret Coker with a date of birth of 20 November 1997, but rather is Mary Coker with a date of birth of 11 May 1992.
Despite this finding, it was not the role of the Tribunal to undertake a comprehensive assessment to verify the identity of the person claiming to be Margret Coker. Even if the Tribunal was not satisfied about the true identity of the person claiming to be Margret Coker, the evidence in the proceeding raises serious questions about the identity of the person who arrived in Australia in April 2013 and remains in the country as ‘Margret Coker’. The Department has not cancelled the visa of this person and has therefore allowed her to remain in Australia, despite its finding that she is not the person granted the visa to Australia; because considerations not to cancel her visa outweighed the non-compliance. These considerations included Australia’s international obligations in relation to her child in Australia and her potential indefinite detention due to the difficulty in removing her to Sierra Leone. While the identity of that person is far from clear, for the avoidance of doubt, the Tribunal is not satisfied that this person is Margret Coker, but rather Mary Coker with a date of birth of 12 May 1992. In this regard, the Tribunal notes for completeness that it cannot be found, as was submitted by Mr Koker’s representative, that because the Department did not cancel the visa of Margret Coker, that the Department either concluded that the person in Australia was Margret Coker or that it may only have found one of the grounds for cancellation had been made out. It is clear from the Department’s decision not to cancel Margret Coker’s visa that it was not satisfied as to her identity and it considered that she did not comply with all three of sections 101, 102 and 103 of the Migration Act.
Two critical pieces of documentary evidence point to the person currently in Australia using the name Margret Coker being a different person, that is, Mary Coker. The first of these documents is Form 424C completed and submitted in June 2014 by the person who arrived in Australia using the visa granted to Margret Coker, which stated that she replaced a person by that name before travelling to Australia. With Form 424C, that person sought to change her name with the Department from ‘Margret Coker’ to ‘Mary Coker’ and stated that the person that was supposed to come to Australia became pregnant and ran away, so the person now in Australia as ‘Margret Coker’ replaced that person before travelling here from Ghana. In Form 424C, the person stated that her correct name was ‘Mary Coker’, born on 12 May 1992. The Tribunal places significant weight on the content of this document. Conversely, the Tribunal places minimal weight on the subsequent documents that retracted the admission in Form 424C, including because they were made following the Department issuing to Margret Coker a Notice Considering Cancellation of her visa based on the information she had provided it in Form 424C regarding her identity.
The second of these documents is the First Statutory Declaration made in November 2016 by the person that entered Australia as Margret Coker, in which she stated that, although she was the same person to whom the visa was granted, her first name was in fact ‘Mary’ and she wanted her details changed accordingly. This Statutory Declaration was made shortly after the Department commenced considering cancelling the visa of Margret Coker. Under cross-examination, Margret Coker said the information she had provided in her First Statutory Declaration about ‘Mary’ being her first name was incorrect, despite her knowing it was an offence to provide such information under the Statutory Declarations Act 1959. When it was put to Margret Coker whether she maintained she was that person during the visa cancellation process, she said ‘in some ways’. The Tribunal is satisfied that the evidence demonstrates the person purporting to be Margret Coker born on 20 November 1997 is not that person.
The issue of location was raised by Mr Koker’s representative. That is, the argument was made that the reviewable decision before the Tribunal was based on a false premise that Margret Coker was in Sierra Leone at the time she was substituted by an imposter and this could not be correct because there is documentation demonstrating that she was in Ghana for a number of years before the issuing of the relevant Australian visa. The Tribunal is conducting a de novo (or new) merits review of Mr Koker’s application for Australian citizenship by conferral. In this way, the Tribunal is making a fresh decision based on a consideration of all of the evidence before it. The Minister did not submit before the Tribunal that Margret Coker was replaced by another person in Sierra Leone, rather than Ghana or any other location and there were no contentions regarding whether the person was in Sierra Leone or Ghana when the conduct in question was said to have occurred.
The only evidence in relation to the location of the person that arrived in Australia as Margret Coker is said to be a statement in Form 47A accompanying the Partner visa application completed by Mr Koker and his wife on behalf of Margret Coker that she was in the Ghanaian refugee camp between November 2009 and April 2013. The Minister submitted that it was difficult to believe that they could recall the period of time spent by Margret Coker in the refugee camp, but equally could not recall his and Margret Coker’s siblings on the previous page. On the evidence before it, the Tribunal is satisfied that Margret Coker was replaced by another woman before that person travelled to Australia in April 2013. It follows that it is more than likely that this substitution occurred in Ghana and not Sierra Leone, however the matter of where this substitution actually occurred is not determinative of Mr Koker’s application before the Tribunal.
Credibility of ‘Margret Coker’
The Tribunal is not satisfied that the person appearing before it as Margret Coker was a witness of truth. Her testimony was confused and unconvincing. In particular, her evidence regarding the source of the documentation she provided to the Department, attached to Form 424C and in response to it considering cancelling her visa, was implausible. In this regard, the Tribunal is not satisfied that while she was in Australia she obtained the documentation from a friend in Ghana and filled in the relevant details in those documents. The Tribunal finds it implausible that the associated documents of a person called ‘Mary Coker’ (or ‘Mary Koker’) came to be in the possession of the person purporting to be ‘Margret Coker’ through her procurement of them from a friend as incomplete documents contained in a school that was closing in the refugee camp in Ghana and then upon receiving them in Australia that she falsified information in those documents to support her Form 424C application to change her name and date of birth to the person with the same details referred to in those documents. The Tribunal finds that the person known as Margret Coker had these documents in her possession because she is in fact Mary Coker, who attended the schools in Sierra Leone and Ghana as set out in that documentation. Additionally, the Tribunal is not satisfied that the person purporting to be Margret Coker applied to the Department using Form 424C to change her name and date of birth for the purpose of legally purchasing alcohol when out with her friends in Australia. The Tribunal finds that the purpose of the Form 424C was to correct this person’s name and date of birth from ‘Margret Coker’ to ‘Mary Coker’, following arrival in Australia on a visa issued not to her, but to Margret Coker, and which visa was sponsored by Mr Koker.
Furthermore, the Tribunal places no weight on Margret Coker’s evidence that she is the real Margret Coker, in light of her acknowledgement at hearing that she has previously provided false information to Australian authorities, such as in her First Statutory Declaration referred to above, in the knowledge that it was an offence against Australian law. In this regard, the witness appearing as Margret Coker has demonstrated that she is willing to lie to authorities to achieve certain outcomes, including retaining her Australian visa. The Tribunal also finds it implausible that the person in Australia as Margret Coker sought to change with the Department her whole name and the day, month and year of her birth so as to be able to ‘go out’ and legally purchase alcohol. This was the assertion she made in her Third Statutory Declaration and Fourth Statutory Declaration, which were made after the Department commenced considering cancelling her visa based on her statement in Form 424C that she replaced Margret Coker and therefore used that person’s visa to enter Australia. In this regard, the reasons for the person seeking to change their name and date of birth set out in Form 424C, that is because she was not Margret Coker but in fact Mary Coker, are accepted by the Tribunal, not the subsequent different and implausible explanation provided by that person.
Conduct of Mr Koker
In relation to Mr Koker’s conduct, in light of the finding that the person who entered Australia in April 2013 using a visa granted to Margret Coker is not in fact Margret Coker, and that person was sponsored by Mr Koker, it follows that Mr Koker facilitated an unlawful migration outcome by bringing into Australia a person purporting to be Margret Coker using the visa granted to an individual by the name of Margret Coker with a date of birth of 20 November 1997.
Under cross-examination, Mr Koker was taken through a number of forms he submitted to the Department with respect to his own immigration status or that of others, including his Offshore Humanitarian visa application, the prospective marriage visa application and also the Form 47A submitted with the Partner visa application. In completing these forms, or assisting to do so, Mr Koker failed to disclose all relevant details regarding the composition of his and Margret Coker’s family. Mr Koker’s own evidence to the Tribunal was that he deliberately limited the number of family members, or siblings, he listed in order to improve his chance of success in securing a visa to Australia and therefore permanent residency. He later told the Tribunal that he may have failed to appreciate the requirements of the visa application forms, however the Tribunal places little weight on this explanation due to his earlier admission and the unambiguous terms of the questions in those forms requiring an applicant or sponsor to list all family or siblings. The Tribunal finds that Mr Koker deliberately omitted relevant information on visa application forms to improve his chance of achieving certain outcomes, such as a visa for himself to Australia. On his own evidence under oath before the Tribunal, it appears to the Tribunal that Mr Koker breached section 101 of the Migration Act by providing incorrect answers in his visa application, and potentially in relation to other people’s visa applications. As referred to by Mr Koker’s representative during the hearing, the provision of incorrect information in a visa application is grounds to cancel a person’s visa under section 109 of the Migration Act. As a result of Mr Koker’s evidence to the Tribunal regarding this conduct, and upon request by Mr Koker’s representative due to his concern regarding self-incrimination, the Tribunal informed Mr Koker about the implied undertaking applying to Tribunal proceedings such that information or evidence in this proceeding cannot be used in other forums without the consent of the parties or waiver by the Tribunal. The Tribunal is satisfied that Mr Koker deliberately provided false information on his visa application to achieve a certain migration outcome and such a finding would of itself be sufficient for the Tribunal to find that Mr Koker is not of good character pursuant to subsection 21(2)(h) of the Citizenship Act. Additionally, Mr Koker on numerous occasions provided the Department with information relating to the person claiming to be Margret Coker that, based on the Tribunal’s findings, was false. The totality of this conduct weighs significantly against Mr Koker being found to be of good character.
Credibility of Mr Koker
In relation to Mr Koker’s credit as a witness, the Tribunal found him to be confident, calm and articulate in detailing his experiences in Sierra Leone and Ghana, his journey from Africa to Australia and his community involvement since arriving in Australia in 2009. However, when Mr Koker was asked under cross-examination about the identity of the person who arrived in Australia in 2013 as Margret Coker, it was apparent to the Tribunal that he became noticeably uncomfortable in the witness box, his testimony was circular and often confused and he was less than convincing in his evidence. In this regard, and based on the evidence before it, the Tribunal is not satisfied that Mr Koker was a witness of truth.
Character References
In relation to the multiple character references submitted by Mr Koker, the Tribunal acknowledges that they detail his considerable community involvement; however they do not address his alleged conduct in facilitating unlawful migration outcomes. In this regard, the Citizenship Policy issued by the Department relevantly advises decision makers to ‘give very little weight to references which do not acknowledge the offence or incident’.
The Affidavit from Cecilia Kenneh of 7 November 2018 was also relied upon to establish the identity of Margret Coker. Neither Ms Kenneh nor those that provided character references were called by Mr Koker to give evidence before the Tribunal in support of his application. In these circumstances, their evidence was unable to be tested. As a result of all of the above, the Tribunal places minimal weight on the character references provided in support of Mr Koker’s application.
Confidential Documents
The Tribunal was provided with the Confidential Documents in advance of the hearing, which had been originally submitted to the Department. The Confidential Documents comprise records of tip-offs received by the Department in relation to Mr Koker’s conduct in the facilitation of unlawful migration outcomes. Although noting that this evidence was untested before the Tribunal as a result of the Tribunal’s confidentiality order, the Confidential Documents contain serious allegations made to the Department separate to Mr Koker’s application for Australian citizenship. Although this information did not lead to the Tribunal’s finding regarding Mr Koker’s character, it was instructive as to his alleged conduct while in Australia.
Application of Citizenship Policy and Common Law
In light of the Tribunal’s findings regarding Mr Koker’s credibility and conduct, and the related identity and credibility of Margret Coker, it is evident that Mr Koker is not a person of good character for the purposes of eligibility for Australian citizenship pursuant to the Citizenship Act. The Federal Court in Irving stated that ‘good character’ referred to the ‘enduring moral qualities of a person’. In this regard, the Citizenship Policy states that ‘good character’ refers to these enduring moral qualities being ‘an indication of whether an applicant is likely to uphold and obey the laws of Australia’. The Citizenship Policy provides that ‘enduring moral qualities’ means, amongst other things, ‘distinguishing right from wrong’; and ‘behaving in an ethical manner, conforming to the rules and values of Australian society’.[134] Plainly, based on the Tribunal’s findings, Mr Koker does not meet these principles set out in the Citizenship Policy. More specifically, the Tribunal is not satisfied that Mr Koker is of good character because he did not demonstrate ‘good enduring/lasting moral qualities’[135] in making his own visa application and throughout his citizenship application process. In relation to the particular migration matter of Margret Coker, the Tribunal is not satisfied that Mr Koker has: respected and abided by the law in Australia; been honest; and been truthful in his dealings with the Australian Government.[136] Accordingly, the Tribunal is satisfied that the Australian community would not consider that a person of good character would have behaved in the manner in which Mr Koker has been found to have done. To this end, in May, the Tribunal said that people engaging in ‘cynical immigration malpractice’ can expect ‘little sympathy or further assistance in fulfilling their aims and ambitions’.[137] Relatedly, it was said in Lachmaiya that it is of ‘fundamental importance’ to be truthful in dealing with government officials on migration matters.[138] As a result, because the grant of Australian citizenship is a privilege not bestowed lightly,[139] an applicant must be found to be of good character; at this stage, Mr Koker does not meet that requirement for eligibility to become an Australian citizen.
[134] Exhibit R8, page 145.
[135] ibid, pages 145-146.
[136] ibid, page 147.
[137] May at [84].
[138] Lachmaiya at [35].
[139] Fenn at [8].
CONCLUSION
The Tribunal acknowledges that Mr Koker and his family experienced traumatic events in Sierra Leone. They fled the Civil War in that country and resided for years at the Buduburam refugee camp in Ghana. After being granted a humanitarian visa to Australia, it was evident to the Tribunal that Mr Koker has been heavily involved in the community. In this regard, Mr Koker is to be commended on many aspects of the life he has created for himself and his family since arriving in Australia in 2009. However, the finding by the Tribunal that a person applying for Australian citizenship has been involved in the facilitation into Australia of another person who was not granted a visa to do so is very serious and cannot lightly be outweighed by other more redeemable features of that applicant.
Accordingly, the Tribunal is not satisfied that Mr Koker is a person of good character. He is therefore not eligible at this time to be conferred Australian citizenship because he does not meet all eligibility requirements to become an Australian citizen set out under subsection 21(2) of the Citizenship Act.
The Tribunal notes for completeness that, although Mr Koker remains a citizen of Sierra Leone, he is also a permanent resident of Australia and can re-apply for Australian citizenship in the future.
DECISION
The decision under review is affirmed pursuant to section 43(1)(a) of the AAT Act.
I certify that the preceding 203 (two hundred and three) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
........................................................................
Associate
Dated: 4 February 2020
Date(s) of hearing: 12 December 2019 Date final submissions received: 13 September 2019 Solicitors for Applicant: Mr Mark Northam, Northam Lawyers Solicitors for Minister: Ms Rachel Noronha, Clayton Utz Lawyers
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