Mabith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 3509

Mabith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3509 (14 September 2020)
Division:GENERAL DIVISION
File Number(s): 2019/5743
Re:Akuch Malual Mabith
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:14 September 2020
Place:Perth

The Tribunal orders that the decision of the delegate of the Respondent not to grant citizenship to the Applicant on the basis that the Applicant did not meet the good character criterion in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act) be set aside and that the matter be remitted to the Respondent for reconsideration with the direction that the Applicant meets the character criterion in s 21(2)(h) of the Act.
...................................[SGD]..................................
Deputy President Boyle
CATCHWORDS
CITIZENSHIP – citizenship by conferral – good character – delay in response to department requests – provision of bogus documents – wilful dishonesty – inadvertent provision of false document – illiteracy – decision remitted with direction
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(2)(h)
CASES
Al Temimi v Minister for Immigration and Border Protection [2014] AATA 97
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
Bhavsar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3438
BOY19 v Minister of Immigration and Border Protection [2019] FCA 574
BWGZ and Minister for Home Affairs [2019] AATA 1645
JLKJ and Minister for Immigration and Border Protection [2019] AATA 716
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Taradel and Minister for Immigration, Local Government and Ethnic Affairs [2005] AATA 1255
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016 – pages 144, 145, 146, Chapter 11
REASONS FOR DECISION
Deputy President Boyle
14 September 2020
THE APPLICATION

The Applicant seeks the review of a decision of a delegate of the Respondent not to grant citizenship to the Applicant on the basis that the Applicant did not meet the good character criterion in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).
BACKGROUND
The Applicant is a citizen of Sudan who arrived in Australia on 5 September 2008 as the holder of a Global Special Humanitarian (Class XB) (Subclass 202) visa. She has remained in Australia since that date.
She arrived in Australia as part of a family group comprising her sister, three of her own children (one of whom was pregnant) and a grandchild.
Prior to her coming to Australia, the Applicant had spent over ten years in the Kakuma refugee camp in Kenya. While in the refugee camp the Applicant applied for an Australian visa. She was diagnosed with tuberculosis and received treatment. She says that her treatment was recorded on a tuberculosis treatment card issued by the International Organization for Migration (IOM). The authenticity of this document is (apparently) disputed by the Respondent.
The Applicant’s treatment was successful and she received a certification from the IOM office in Nairobi that she was clear of tuberculosis. As a result of this the Applicant was given a medical clearance under the Humanitarian Entrants Management System of the Department of Immigration on 4 April 2008.
The Applicant says that while waiting in Nairobi to come to Australia she took driving lessons and was issued with a document by the driving school.
By application lodged on 11 March 2016 the Applicant sought citizenship by conferral.[1]
[1] T8.
On 18 April 2016 the Department wrote to the Applicant requesting additional documents which might evidence her identity.[2] A further request for additional information was sent to the Applicant on 2 May 2017.[3]
[2] T10.
[3] T12.
On 26 June 2017 the Department received a number of documents from the Applicant.[4]
[4] T13.
On 8 January 2019 the Department again wrote to the Applicant requesting identity documents issued outside Australia.[5]
[5] T14.
On 21 January 2019 the Applicant responded providing a statutory declaration and additional documents including a purported driver’s licence issued by the Registrar of Motor Vehicles, Nairobi (the Kenyan driver’s licence)[6] and tuberculosis treatment records[7] (see [4] above).
[6] T15/192.
[7] T15/193-194.
The Department asked the Australian High Commission (the AHC) to carry out verification checks of the Applicant’s tuberculosis treatment record and her Kenyan driver’s licence.
On 17 June 2019 the AHC advised that IOM had advised that:
(a)they had checked their tuberculosis treatment records dating back to 2010 and could not locate any record of the Applicant; and
(b)the treatment card provided by the Applicant is a mixed format of new and old versions of the same document.
Information received by the Department indicated that the Kenyan driver’s licence provided by the Applicant was not genuine. By letter dated 28 June 2019 the Department invited the Applicant to comment on the adverse information in respect of the tuberculosis treatment record and the Kenyan driver’s licence.[8]
[8] T19.
On 16 August 2019 the delegate of the Respondent refused the application.[9] The Decision Record dated 16 August 2019[10] identified that the Minister was not satisfied that the Applicant was of good character and therefore did not meet the criterion under s 21(2)(h) of the Act.[11] The Decision Record identified the basis of that finding as being:[12]
[9] T21.
[10] T2.
[11] T2/9 and 12.
[12] T2/9-12.
On 30 April 2019, the Department sent your tuberculosis treatment record to the Australian High Commission in Nairobi for verification. On 17 June 2019, the Department received advice from the Australian High Commission in Nairobi that the International Organisation [sic] for Migrant [sic] (IOM) does not hold your Tuberculosis treatment records in their archive. “IOM Nairobi advised that they checked their TB treatment records dating back to 2010, however, could not locate any record of the applicant”. Furthermore, the IOM advised that the card you provided is a mix [sic] format of new and old versions of the same document and therefore the Department has serious concerns regarding the genuineness of this document.
…On 26 June 2019, the Department received advice from the Australian High Commission in Nairobi that the Kenyan driver’s licence you provided is a counterfeit. The officers from the Australian High Commission in Nairobi contacted the National Transport and Safety Authority in Kenya and, “On 25 June 2019, we received a response from the National Transport and Safety Authority stating that the driver’s licence does not exist in their system…”
… under CP, an applicant would demonstrate truthfulness and not practice deception or fraud in their dealings with the Australian Government or other governments and organisations. The CP also stated that a person of good character would not provide false personal information or other material deception during visa and citizenship applications. However, you have provided misleading information and a fraudulent document to the Department in your Australian citizenship application; couple this with your lack of response to the natural justice letter, therefore I am not satisfied that you meet Citizenship Policy and be considered

“of good character” in the citizenship context.
…
I have decided to refuse to approve your application to become an Australian citizen by conferral because:
You do not meet the criteria [sic] below:
….
☒ Paragraph 21(2)(h) concerning good character
The only criterion identified in the decision under review as not being met was that required by s 21(2)(h) of the Act.
THE ISSUES
The Applicant, at paragraphs 2 and 3 of her SFIC, identifies the issues as being:
2.Is there evidence that supports the findings that:
2.1. The IOM card (T Docs p193) is fake or doctored in any way?
2.2. The Applicant provided the Kenyan licence (T Docs p192) with the knowledge that it was a fake or with any intention to mislead?
2.3. There was an unreasonable delay in response to the Department’s ‘requests for more information’, given the literacy of the Applicant?
3.Can the Tribunal be satisfied that the Applicant is of good character under

s 25(2)(b)(iii) of the [Act]
The Respondent’s SFIC does not identify the issue or issues for determination by the Tribunal. The thrust of the Respondent’s submissions, both in the Respondent’s SFIC and at the hearing, indicate that the Respondent’s argument is that, for the reasons identified in the delegate’s decision as set out in [15] above, the Applicant is not of good character for the purposes of s 21(2)(h) of the Act. The Tribunal will treat that as being the issue on which the Tribunal is to reach the correct or preferable decision.
THE HEARING AND EVIDENCE
The application was heard on 9 July 2020. The Applicant was represented by

Ms A Copeland and the Respondent was represented by Mr A Gerrard. The following documents were admitted in to evidence:
(a)statement of the Applicant dated 23 April 2020 (Exhibit A1);[13]
(b)section 37 T documents (Exhibit R1);[14] and
(c)screen shots of emails dated 17 June 2019 from Australian High Commission in Nairobi (Exhibit R2).
[13] A1.
[14] R1.
The Applicant was the only witness called. She gave evidence and was cross-examined through an interpreter. The Tribunal also had before it the Applicant’s Statement of Facts, Issues and Contentions dated 24 April 2020 (ASFIC) and the Respondent’s Statement of Facts, Issues and Contentions dated 22 May 2020 (RSFIC).
LEGISLATIVE FRAMEWORK
Section 21(2)(h) of the Act provides:
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) …
…
(h) is of good character at the time of the Minister's decision on the application.
The Department has, from time to time, issued executive policy documents setting out, amongst other things, the executive policies relating to and procedures to be followed in applications for citizenship (for a discussion on the different documents falling into these categories see Bhavsar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[15] at [20]-[32]). The primary executive policy document is the Citizenship Policy (Policy).
[15] [2020] AATA 3438.
Chapter 11 of the Policy deals with character as that term is used in the Act, and, more particularly, what is meant by “good character”. The overview of Chapter 11 describes its purpose as follows:[16]
…Good character is not defined in the Act. The purpose of this chapter is to provide guidance on the administration of the ‘good character’ provisions under the Act and to define for administrative purposes, the meaning of ‘good character’
It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issue of character until they are ‘satisfied’, on a reasonable basis that the applicant is, or is not, of good character.
[16] Policy page 144 of 237.
The Policy provides:[17]
[17] Policy page 145-146 of 237.
What is good character
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.
…
The term ‘good character’ is not defined in the Act. Therefore, the Federal Court and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
ocharacteristics which have been demonstrated over a very long period of time
odistinguishing right from wrong
obehaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
…
Characteristics of good character
Drawing from the definition outlined in Definition of good character, an applicant of good character would:
o    respect and abide by the law in Australia and other countries
o    be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
o    be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
·providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
·involvement in bogus marriage
·concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
·involvement in Centrelink or Australian Tax Office fraud
·giving false names and/or addresses to police
o    not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
o    not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
o    not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
o    not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
o    not be the subject of any extradition order or other international arrest warrant
o    not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
o    not be the subject of any verifiable information causing character doubts.
This list is not exhaustive and should be considered in conjunction with Framework for making ‘good character’ decisions.
CONSIDERATION
The parties’ contentions
The Applicant addresses the three bases upon which the delegate relied, and the Respondent relies in these proceedings, to find that the Applicant is not of good character (see [15] above).
1. Lack of response to Department requests
In relation to the letter dated 28 June 2019 from the Department (see [14] above),
which sought a response within 35 working days, the Applicant argues that allowing 7 days for the letter to reach the Applicant (on what basis 7 days should be allowed is not identified),
[18] ASFIC para. 20.
the “35 day” timeframe would have expired on 9 August 2019 and the decision to refuse was made on 16 August 2019, that is one week after the deadline. The Applicant contends that therefore the Applicant was “only one week late in responding”.[18] The Applicant’s counsel appears to have based the calculation of the date by which the response was required on calendar days rather than working days as provided in the Department’s letter. The Tribunal calculates the 35 working days period to have expired on 16 August 2019, the day that the delegate made the decision. However, the Applicant’s argument is, with respect, non-sequitur. The Applicant was not one week (or other period) late in responding; she did not respond. The relevant issues are whether there is a reason for her not responding and whether the lack of response, in the circumstances, is indicative of a lack of good character.
The Applicant points to the case of BOY19 v Minister of Immigration and Border Protection[19] (BOY19) at [89] in which the Court found:
A more difficult question is whether “tardiness” in dealing with a government body, in and of itself, is relevant to the assessment of a person’s character. Tardiness can have many causes, not all of which will be relevant to the question of character in the statutory sense. In the worst case, tardiness may be caused by a desire to withhold information from a government body and thereby mislead or deceive the body. Tardiness may also be caused by disrespect for, or disregard of, a particular government body or department. If such causes were present, it would be open to conclude that such attitudes weighed adversely in the assessment of a person’s character in assessing eligibility for citizenship. Conversely, tardiness may be caused by intellectual difficulties, or language difficulties, or a lack of familiarity with or comprehension of particular governmental requirements and procedures. In such circumstances, it would be wrong to conclude that tardiness ought to carry any weight at all in the assessment of character.
[19] [2019] FCA 574.
The Respondent did not make any direct submissions, either in the RSFIC or at the hearing, to the effect that the Applicant’s failure to respond to the Department, in particular to the Department’s letter of 28 June 2019, was of itself evidence of a lack of good character.

The submissions made in relation to that issue by the Respondent appeared to be more to suggesting that the lack of provision of response to the findings on the authenticity of the driver’s licence and the issues identified by the AHC in Nairobi concerning the IOM tuberculosis treatment card, was indicative of those documents being fake and the Applicant knowing that they were fake.[20]
[20] Transcript at 38-39.
The Tribunal does not agree with the Respondent’s characterisation of the Applicant’s failure to respond to the Department’s letter. The Tribunal accepts the Applicant’s explanation for not responding. Her evidence was that she is illiterate. She is reliant on her daughter to translate documents that she receives.[21] In her statement dated 23 April 2020,[22] she said:
5.I did not go to school in Sudan, I have had no education and I cannot read or write, either in my own language or in English.
…
19.Because I cannot read, every time I receive a letter I have to find someone to help me read and understand it. I usually ask my daughter, but she is very busy, and sometimes it is difficult for me to find out what the letters said and respond to them.
20. The Department sent me letters asking for more information, but it took me quite a while to respond. This was because of the difficulties I have just described. Then in January 2019, I just photocopied all of my documents, I did not know what else to provide to the Department, [my] daughter helped me. I made a Statutory Declaration to explain that I had not more documents.
[21] Transcript at 11.
[22] A1.

Further, in response to questions in cross-examination as to why she did not respond to the letter of 28 June 2019, her evidence was that she had a meeting with Departmental officers after she received the letter in which she tried to explain to them the circumstances of her getting the driver’s licence in Kenya and the IOM tuberculosis treatment card.[23]

Her evidence was that as she had explained, or at least tried to explain, the origin of the documents at the meeting, she did not think that a written response was required.
[23] Transcript at 21-22.
The Tribunal accepts the Applicant’s evidence and her explanation as to why she did not respond in writing to the Department’s letter of 28 June 2019. The failure to formally respond in writing, in the Tribunal’s view, falls into the second category described in the passage in BOY19 quoted at [27] above and, therefore, “it would be wrong to conclude that tardiness ought to carry any weight at all in the assessment of character”.
2. The Kenyan driver’s licence
The Applicant concedes that the Kenyan driver’s licence which she provided to the Department in support of her citizenship application is not genuine. In her statement of

23 April 2020[24] the Applicant said that, while waiting in Kenya to come to Australia, she took driving lessons and that:
16.After I finished all the lessons they [the driving school] gave me a red document, I thought that it was something saying that I had done some driving lessons and now knew how to drive. I could not read it and I didn’t ask anyone to translate it because I thought I knew what it said. I just put it away, thinking it would be god to be able to show that I could drive once I went to Australia.
[24] A1.
The Applicant explains in A1 that when she received the letter from the Department in January 2019[25] asking for documents, she sent all of the documents that she had, including the Kenyan driver’s licence and the IOM tuberculosis treatment card together with a statutory declaration,[26] prepared with her daughter’s assistance,[27] explaining that those were all of the documents that she had. The Applicant was cross-examined on this claim.[28] It was put to the Applicant that the bogus driver’s licence had the words “driver’s licence” on it and the Applicant knew that she did not have a driver’s licence. The Applicant’s evidence was that she cannot read and that she did not “recognise the words ‘driver’s licence’” on the document that she was providing. Her evidence was to the effect that she had no reason to doubt that the document said what those who gave it to her in Kenya represented it said.
[25] T14.
[26] T15/180.
[27] Transcript at 20.
[28] Transcript 17.
The Tribunal does not accept the Respondent’s contention that the explanation given by the Applicant is implausible. The Applicant does not speak English, she is illiterate and has little or no education. The Tribunal accepts the Applicant’s evidence that she did not appreciate that the document that she provided was a fake driver’s licence.
3. The IOM tuberculosis treatment card
The basis upon which the delegate concluded that there were “serious concerns regarding the genuineness of this document”[29] (see [15] above) was two-fold. Firstly, the AHC in Nairobi reported that IOM in Kenya “had checked their TB treatment records dating back to 2010, however, could not locate any record of this applicant”. That is hardly surprising given that the Applicant arrived in Australia in 2008. The reason is clearly nonsensical and could not form the basis of any belief that the TB treatment card is bogus. The second basis for the delegate’s finding that he had “serious concerns” (whatever that means) regarding the genuineness of that document, is the advice from the AHC in Nairobi that the card
[29] T2/9.
“appears to be a mix of format used from over 10 years ago as well as more recent versions of the same document”. While the screenshot of the email from the AHC in Nairobi (R2) referred to examples of TB cards issued by IOM in 2011, 2013 and 2019, they were not included in the evidence presented to the Tribunal. No evidence was presented by the Respondent to substantiate or explain this assertion that the card, which is only two pages, is a mix of formats.
At paragraph 10 of the RSFIC the Respondent concedes that the IOM response

“does not cover this period”, which the Tribunal takes to be a concession that the response does not cover the relevant period. It was therefore not clear whether the Respondent continued to rely on the “serious concern” of the genuineness of the IOM tuberculosis treatment card as being a basis for the finding that the Applicant was not of good character. Clarification of the Respondent’s position was sought at the commencement of the hearing as follows:
TRIBUNAL:Yes. Mr Gerrard, that is still, I take it, part of the respondent’s contention in relation to character, is it?
MR GERRARD:    I think for me to clarify the situation, the respondent accepts the observation of the applicant in respect of the date - the respondent does not necessarily accept that this is a genuine document but does not make a submission that a non-genuine document has been provided.
…
MR GERRARD:    And that’s on the basis that the evidence that was relied upon by the delegate does not really go to that. Bearing in mind this is a matter that only involves character. Somewhat surprisingly, only involves character, not identity.
…
MR GERRARD:    If we were looking at this in terms of identity, I would be making submissions that this is not - this remains an unverified document - and flags have been raised. But I don’t think as model litigant I could make a submission that this is a document - well, that the applicant has provided a non-genuine document, and that has to go to character in the same way as a driver’s licence is. So, that’s really the submission. We say the document is of no utility in this proceeding.
TRIBUNAL:Yes. So in that regard the Minister’s submission as to character relies really now solely on the inference to be drawn from the provision of what might or might not be a fake driver’s licence, or it appears to be accepted that the document that purports to be a driver’s licence is not a genuine driver’s licence.
MR GERRARD:    Precisely.
The end result is that the only document relevant to the issue of the Applicant being of good character or not is the Kenyan driver’s licence, which the Applicant accepts is not a genuine driver’s licence.
The Applicant refers to the tribunal’s decision in BWGZ and Minister for Home Affairs[30] (BWGZ), in particular to the finding at [61] that:
…the Tribunal has reached the conclusion that, regardless of the precise status of the document, it was not presented by the Applicant with any intention to mislead or deceive government authorities, nor was there any willful misuse of it by him. It does not reflect adversely upon any assessment of whether or not the Applicant is a person of “good character”.
(Footnotes omitted.)
[30] [2019] AATA 1645.
A very useful summation of the law on good character in the citizenship context is set out in BWGZ at [70]-[84].
At [82] Senior Member Puplick comments:
In relation to the provision of false or misleading information, this Tribunal has set out clearly its view about the provision of false or misleading information to the Department in migration/citizenship matters:
Many of the provisions of the section [i.e. in the Migration Act] are reflected in the regulations, particularly in schedule 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first sub-section to the giving of false information, the use of bogus documents and the making of false or misleading statements.
These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.
(Footnotes omitted.)
At [84] Senior Member Puplick says:
I have made it clear in previous decisions that there is “no excuse for misleading the Australian government or its agencies” but clearly there is a difference between the government being misled by some inadvertent activity on the part of an applicant and being misled willfully. The impact on the government may be the same, but the latter case, willful misleading, goes clearly to the question of good character whereas inadvertence on the part of an applicant may not. The Tribunal has held in previous decisions that even where people have criminal convictions, discretion may be exercised in their favour provided that there is no overt attempt to “deceive the respondent” (i.e. the Minister) in relation to relevant facts.
(Footnotes omitted.)
The Respondent refers to a number of cases to support the contention that it has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character (see Lachmaiya v Department of Immigration and Ethnic Affairs,[31]
[31] (1994) 19 AAR 148.
[32] [2014] AATA 97.
[33] [2015] AATA 256.
Al Temimi v Minister for Immigration and Border Protection,[32] Beyan v Minister for Immigration and Border Protection[33]).
The Respondent cites the following passage from Taradel and Minister for Immigration, Local Government and Ethnic Affairs[34] at 431-432 at [23]:
Dishonesty in dealings with the department is a very serious matter [because] the integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly.
[34] [2005] AATA 1255.
The Respondent also cites the decision of the tribunal in Nguyen and Minister for Immigration and Border Protection[35] and the decision of the tribunal in JLKJ and Minister for Immigration and Border Protection[36] in which the member found that an applicant who produces a bogus document would not pass the character test.
[35] [2018] AATA 1082.
[36] [2019] AATA 716.
The Tribunal accepts that the cases cited by the Respondent represent the law on that point, however, all of those cases involve an applicant deliberately and knowingly providing a false document or otherwise deliberately misleading the Department. That is not the case with the Applicant.
With the abandonment of the claim that the IOM tuberculosis treatment card is bogus,

at least insofar as assessment of good character is concerned, the only circumstances relied on by the Respondent to find the Applicant not being of good character are the claimed failure to respond to the Departmental letter asking for information or comment on an adverse finding, and the provision of the fake Kenyan driver’s licence.
In relation to the first circumstance, the Tribunal accepts the Applicant’s evidence that, firstly she did respond by meeting with Departmental officers and secondly, if her response was not prompt and in the end may not have been sufficient in that it was not in writing, that was a result of her illiteracy and lack of English. There is nothing in the Policy which specifically makes promptness of response to the Department a factor in assessing an applicant’s character (see [24] above). Any tardiness or lack of appropriate form was not indicative of a lack of respect for Australian laws and was not, as seems to have been suggested by the Respondent’s counsel’s cross-examination of the Applicant, evidence of her trying to conceal something from the Department. It was, in the Tribunal’s assessment, as noted above, a circumstance that falls into the second category described in the passage in BOY19 quoted at [27] above and, therefore, “it would be wrong to conclude that tardiness ought to carry any weight at all in the assessment of character”.
Similarly, for the reasons set out above, the provision by the Applicant of a bogus Kenyan driver’s licence was not a deliberate attempt to deceive the Department and falls into the category described by Senior Member Puplick in BWGZ in the passage cited at [41] above. It was inadvertent, not wilful.
DECISION
For the reasons set out above, the Tribunal orders that the decision of the delegate of the Respondent not to grant citizenship to the Applicant on the basis that the Applicant did not meet the good character criterion in s 21(2)(h) of the Act be set aside and that the matter be remitted to the Respondent for reconsideration with the direction that the Applicant meets the character criterion in s 21(2)(h) of the Act.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...................................[SGD]..................................
Associate
Dated: 14 September 2020

Date(s) of hearing: 9 July 2020

Counsel for the Applicant: Ms A Copeland

Solicitors for the Applicant: SCALES Community Legal Centre

Counsel for the Respondent: Mr A Gerrard

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	9 July 2020
Counsel for the Applicant:	Ms A Copeland
Solicitors for the Applicant:	SCALES Community Legal Centre
Counsel for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor