Mahdawi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 3343

Mahdawi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3343 (15 September 2021)

Division:GENERAL DIVISION

File Number:          2018/7630

Re:Isaaq Mahdawi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:15 September 2021

Place:Melbourne

The Tribunal under section 43(1)(c) of the Administrative Appeals Tribunal Act 1975 –

(a)sets aside the decision dated 26 November 2018 refusing the application for Australian citizenship by conferral under section 24(3) of the Australian Citizenship Act 2007 (‘the Act’), and directs that this prohibition does not apply; and

(b)otherwise confirms that the Applicant is not eligible for citizenship under section 21(2)(h) of the Act because the Tribunal is not satisfied he is of good character.

The result is that the decision to refuse citizenship is affirmed.

........................................................................

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – citizenship by conferral – where applicant is citizen of Afghanistan – where applicant was an unregistered refugee in Iran – where delegate of Respondent refused application as not satisfied of applicant’s identity – delegate also not satisfied applicant of good character – consideration of evidence – where Tribunal satisfied of applicant’s identity – where applicant provided misleading and false information to Department – where opportunities given to correct incorrect information not taken – where additional false claims made – obligation to provide true and accurate information – decision under review varied but otherwise affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 37
Australian Citizenship Act 2007 (Cth), ss 21, 22, 24, 52
Migration Act 1958 (Cth)

Births, Deaths and Marriages Act 1986 (Vic), s 28

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Drake and Minister for Immigration and Ethnic Affairs (No.2), Re: (1979) 2 ALD 634
Fenn and Minister for Immigration and Multicultural Affairs, Re: [2000] AATA 931
Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 86

Secondary Materials
Department of Home Affairs, Australian Citizenship [Policy Statement] - Citizenship Policy Instructions, Reissued 27 November 2020 (as revised)
The Washington Post, 25 October 1911, page 6

REASONS FOR DECISION

Senior Member D. J. Morris

15 September 2021

BACKGROUND

1. The Applicant, Mr Isaaq Mahdawi, applied for Australian citizenship by conferral on 8 December 2014. On 26 November 2018, a delegate of the Minister responsible for administering the Australian Citizenship Act 2007 (‘the Act’), the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), refused the application.

2. There is a range of requirements that must be met before a non-citizen’s application for the grant of Australian citizenship is approved.  The delegate found that Mr Mahdawi did satisfy certain eligibility requirements.  He was aged 18 years or over at the time of his application (thus satisfying section 21(2)(a) of the Act).  He had provided satisfactory evidence that he was a permanent resident (section 21(2)(b)).  The general residence requirement set out in section 22 was satisfied (section 21(2)(c)).  He had provided satisfactory evidence that he was likely to reside in or continue to reside in Australia (section 21(2)(g). Section 21(2A) of the Act requires an applicant to understand the nature of the application, possess a basic knowledge of English and adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.  This is satisfied by the person sitting a citizenship test authorised by the Minister.  Although Mr Mahdawi had previously not passed the citizenship test this requirement was not assessed in relation to this decision.

3. However, the delegate was not satisfied of Mr Mahdawi’s identity.  Section 24(3) of the Act states that the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. The delegate therefore decided that the prohibition in section 24(3) of the Act applies in this case. In addition, in terms of eligibility, the delegate was not satisfied that Mr Mahdawi was of good character (a requirement under section 21(2)(h) of the Act). The consequence of this was that the application was refused. The consideration of the application halted at this stage, and certain other requirements were not assessed.

4. Mr Mahdawi has brought the decision to refuse him citizenship to the Tribunal for review.  Section 52 of the Act gives the Tribunal jurisdiction to review the refusal decision.

5. It was agreed between the parties that the two matters that are in issue are whether the Applicant is of good character, and whether the Tribunal (standing in the shoes of the decision-maker) is satisfied of his identity.  If the Tribunal decides both of these questions in the affirmative, the matter would be remitted to the Respondent to determine the remaining requirements which must be satisfied before the grant of citizenship.

   HEARING

6. The hearing was on 12 July 2021 by video, because of the current public health emergency; and as permitted under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). The Applicant was represented by Ms Jill Vidler, solicitor advocate, of Vidler & Associates. Mr Mahdawi gave evidence and was cross-examined by Mr Zeng He of Clayton Utz, on behalf of the Respondent. The Tribunal was assisted by an interpreter in the Dari language.

7. The Applicant submitted a Statement of Facts, Issues and Contentions, as did the Respondent (‘ASFIC’ and ‘RSFIC’, respectively).

8. The Respondent tabled a volume of documents (‘TD’) under section 37 of the AAT Act, and a volume of supplementary documents (‘STD’) under section 38AA of the same Act. These were admitted as Exhibits R1 and R2.

9. The Applicant tendered the following documents, which were admitted into evidence:

   (a)Applicant’s submissions Part 1 and 2 dated 18 June 2021 (Exhibit A1);

   (b)Applicant’s submissions with attachments dated 10 May 2019 (Exhibit A2);

   (c)Applicant’s statutory declaration, declared 29 August 2020 (Exhibit A3);

   (d)Applicant’s signed statement, dated 1 August 2020 (Exhibit A4);

   (e)Reference from New Life Social Community dated 26 July 2020 (Exhibit A5);

   (f)Statement of translation error, dated 20 February 2019 (Exhibit A6);

   (g)Letter of Sita Namaratne, dated 24 July 2020 (Exhibit A7);

   (h)Copies of four Australian citizenship certificates for family members (Exhibit A8);

   (i)Email from Mitra Pirouzgar with attachments dated 13 March 2020 (Exhibit A9);

   (j)Applicant’s tazkira, translation date 9 January 2019 (Exhibit A10);

   (k)Applicant’s verification by Embassy, dated 12 December 2019 (Exhibit A11);

   (l)Applicant’s Iranian sports card, with translation dated 26 July 2020 (Exhibit A12);

   (m)Iranian vaccination card relating to Applicant’s son Mahdi Hussaini, with translation dated 26 July 2020 (Exhibit A13);

   (n)Iranian hospital notice of birth by doctor and midwife, for Mahdi Hussaini, translation dated 26 July 2020 (Exhibit A14);

   (o)Applicant’s original tazkira, lodged 31 August 2020 (Exhibit A15);

   (p)Applicant’s old tazkira and new translation dated 7 October 2020 (Exhibit A16);

   (q)Name correction by Afghanistan Authority, translation dated 8 February 2019 (Exhibit A17);

   (r)Medical report of Dr A. Bhuiyan, dated 21 June 2021 (Exhibit A18);

   (s)Letter of support from ISCV, dated 17 July 2020 (Exhibit A19);

   (t)Additional materials with attachments, dated 22 February 2019 (Exhibit A20);

   (u)Marriage certificate of Applicant, translation dated 22 March 2019 (Exhibit A21);

   (v)Fire & Safety Australia Statement of Attainment, issued 2 November 2013 (Exhibit A22);

   (w)Photograph A: Applicant at work with employer, lodged 18 June 2021 (Exhibit A23);

   (x)Photograph B: Applicant, wife, and son, lodged 18 June 2021 (Exhibit A24); and

   (y)Applicant’s pay slip, dated 17 June 2021 (Exhibit A25).

   OPENING SUBMISSIONS OF APPLICANT

10. The ASFIC set out that after Mr Mahdawi lodged his citizenship application in December 2014, he attended an interview at the Melbourne office of the Department (now the Department of Home Affairs) and sat the Australian citizenship test.  He was unsuccessful. In October 2016, Mr Mahdawi was requested by an officer of the Department to provide documents in support of his identity.

11. Mr Mahdawi provided various Australian documents.  He also provided an Afghan ‘tazkira’ in the name of Mohammad Isaq (‘Esaq’), with an English translation. The name on the English translation was Isaaq Mahdawi, born in 1973.  He also provided an Afghan marriage certificate with an English translation in the name of Isaq Hussaini, born in 1973.

12. The Department sought further information. Mr Mahdawi provided an Afghan driver’s licence (without a translation), and a travel document issued in 2016 with an Iranian visa label issued in the name Isaaq Mahdawi.

13. Subsequently, Mr Mahdawi sent to the Department three character references. He was advised on 26 November 2018, that the decision-maker had refused his citizenship application because, in the opinion of the Minister’s delegate, he did not meet section 24(3) of the Act (satisfaction as to identity) or section 21(2)(h) of the Act (satisfaction as to good character).

14. The ASFIC submitted that the Applicant was born in Panjab Bamyan, Afghanistan, in 1973.  He is Shi’a Hazara and functionally illiterate in both English and Dari.  His father was killed in a local land dispute and his mother decided to go to Iran with Mr Mahdawi when he was a young child.  He had no formal education.

15. In 1995 he married an Afghan woman who had also come to Iran as a young child.  His marriage certificate with translation was accepted by the Department as genuine but has no official status because of Mr Mahdawi’s refugee status in Iran.  Mr Mahdawi and his wife now have four children, a son Benjamin aged 24, a son Mahdi aged 22, a son, AS, aged 16, all born in Iran, and a daughter, A, aged 3, born in Australia.

16. The family all came to Australia in May 2010. The Applicant and his wife attempted to sponsor a young boy, Omid Hossaini, to Australia under the Department’s refugee and humanitarian programme. Omid is the brother of the Applicant’s wife and is not the child of either Mr Mahdawi or his wife. Ms Vidler said the Applicant is extremely remorseful for  having tried to bring Omid to Australia by claiming he was his and his wife’s own son.

17. Mr Mahdawi was told by the Department that the tazkira he had provided was ‘not corresponding to PRD records’. Ms Vidler submitted that it had been submitted to the incorrect provincial office, Wardak rather than Bamiyan, which caused a problem; as did a translation error made in Australia, which has since been admitted by the accredited translator and corrected.

18. Ms Vidler submitted that the Applicant ‘knows’ the tazkira is genuine and he contacted the Afghan Embassy in Canberra to satisfy the Department of the genuineness of the tazkira.

19. Ms Vidler said that the Applicant was known in Afghanistan as Isaq Hussaini, with Mohammad being the common nomenclature as the first official name of many Afghan men.  In Australia, the Applicant decided to change his name officially to Mahdawi, based on the name of a great-grandparent.  All the family is now known by the surname Mahdawi.

20. Ms Vidler submitted that Mr Mahdawi lived for many years in Iran with no documentation.  He did have a cart-e-sabz (‘Blue card’), which is a temporary card issued to Afghan refugees, but it is no longer in his possession and he possibly handed it over when he left Iran. He did submit an old sports card, in the name of Isaaq Hussaini, issued in Tehran when he was bicycling, which was in evidence.

21. He also submitted a vaccination card and notice of birth for his second oldest son, Mahdi, born in Iran in 2005, which both cite the name of the father as Isaaq Hussaini.

22. In respect of the Applicant’s family composition, Ms Vidler submitted that one of the Applicant’s sisters has two names – ‘Amena’ and ‘Nikbakht’.  Amena is her birthname and Nikbakht was the name given to her when she married.  This sister has subsequently died in childbirth, and the Applicant declared Nikbakht had died in his 2014 citizenship application.

23. Ms Vidler further submitted that the Applicant’s brother, Ibrahim, has been missing for many years, a fact stated by Mr Mahdawi in 2010 and 2014. Mr Mahdawi helped support his sister-in-law Fatima and her daughter and sent money overseas which was collected in the name of the missing (or deceased) brother Ibrahim. Ms Vidler submitted that this was common practice when money is submitted from abroad. Ms Vidler further submitted that Fatima has died from complications of Covid-19 in Herat, Afghanistan, about June 2020. 

24. Ms Vidler said that there was no reliable evidence to support the contention that Mr Mahdawi had submitted a bogus document to the Department. She said the original tazkira had translation errors made, and now  acknowledged, by an Australian translator.  She further submitted that the tazkira was sent to the wrong provincial office to be verified, which was why the Kabul authorities advised it did not accord with their records.

25. Ms Vidler acknowledged that the Applicant had submitted false information to the Department about his nephew Omid by claiming he was their son, but also submitted that  the Applicant and his wife regard themselves as adults responsible for him, and that there was no attempt to obtain a visa outcome for which Omid was not otherwise eligible.

26. Ms Vidler submitted that Mr Mahdawi’s functional illiteracy and reliance on others to help him complete official forms also provide mitigating circumstances, in that it often led to misunderstandings. She submitted that he has held full-time employment in Australia and has had to cope with a very hard life and coming to Australia in a dangerous way.

27. Ms Vidler stressed to the hearing that Mr Mahdawi’s character has been exemplary in Australia and that he has satisfied the identity requirement to the extent it can be.

    OPENING SUBMISSIONS OF RESPONDENT

28. Mr He relied on the contents of the RSFIC. He submitted that the original tazkira was checked at the request of the Department by the relevant authorities in Afghanistan, and the advice was that it was not a verified document. He noted Mr Mahdawi’s claim that the document was checked with the wrong province and that there was an error in the translation, but that does not affect the advice received from Kabul and there was no evidence the tazkira had been verified in the other province.

29. Mr He said it was not contested between the parties that Mr Mahdawi sought to sponsor Omid to come to Australia as his son, and that the Applicant continued this claim in 2018, which is relevant to his character.

30. Mr He said that the Respondent’s position was that Mr Mahdawi has not provided sufficient information in order to establish his identity and that his claims about Omid fly against a conclusion that he is of good character.

    THE APPLICANT’S ORAL EVIDENCE

31. Mr Mahdawi said that his parents had arranged for the issuance of his old tazkira and his mother had given it to him.  He said his mother had said she had obtained it when he was  about one year old.

32. He said that his name on the tazkira was Mohammad Isaq.  He said he had submitted a copy of his marriage certificate to the Department (which was in evidence); and confirmed that his name on the certificate was rendered as Isaq Hussaini and his wife’s as Nasrin Mohammadi.

33. Mr Mahdawi was shown the sports card he had submitted. He said at that time he was cycling to work, and a neighbour suggested he should compete, which would qualify him for the issuance of a sports card.  The name on the card is Isaaq Hussaini, which he said is the name by which he was known in Iran.

34. Mr Mahdawi confirmed that when he first arrived in Australia, he declared his name as Isaaq Hussaini and his wife’s as Nasrin Mohammadi. 

35. When asked when he decided to change his name, Mr Mahdawi said after he had come to Australia, he was told he could change his name without any issue. He said he liked the name ‘Mahdawi’ and so he changed it.  He did not like the name ‘Hussaini’ as a family name because it is a very common name also borne by many other people.

36. Ms Vidler asked why he had chosen the name ‘Mahdawi’. The Applicant responded: “In Afghanistan people call you by your father’s name and your surname from your grandfather.  My grandfather’s name was Mahdawi.”

37. Ms Vidler then asked the Applicant about Omid.  He responded:

    “Omid is my wife’s brother, my brother-in-law.  He has been with us since aged 2 or 3.  He has been raised and grown up with us.  I couldn’t bring him to Australia at that time.  When we came to Australia, I was worried about him.  I am not educated myself.  Some people advised me I could bring him to Australia as a son or adopted son.”

38. When asked directly by the Tribunal who had told him this, Mr Mahdawi responded: “These kinds of things were said in the community.  A community member was saying this.  I was new and was listening to their advice.”

39. Ms Vidler asked the Applicant about a refugee card issued to him in Iran. He responded that the cards were issued for only one year and it expired at some stage, and they did not get a new one. He said that the conditions for getting them was difficult for Afghans. He believed that when it expired, they had thrown it away.

40. Mr Mahdawi said that the name on the card was ‘Isaaq Hussaini’: “I just have one name.  I changed it in Australia.”

41. He was then asked what name was on the old tazkira. The Applicant responded: “Mohammad Isaq.  I’m almost 50 years old, no one has ever known me as Mohammad.”

42. Under cross-examination, Mr Mahdawi was taken to responses he had sent to the Department about his citizenship application.  He said he cannot read or write English and could not remember who had prepared the response: “Either I asked my son or a friend.”

43. The Tribunal asked Mr Mahdawi whether he had dictated what he wanted to put in the reply to the Department. He responded: “Definitely I asked someone to write it for me and prepare it for me. Sometimes the person tells you how to make it better.”

44. When pressed as to whether he told the person helping him what to put in the response, Mr Mahdawi said: “Yes. If it was from my email, it is mine.”

45. Mr Mahdawi said that there are people in the community who help translate documents and he could not remember whether a friend or his son had helped him. He could not recall whether he had paid someone to translate an email dated 17 July 2018 (TD, p 194).

46. Mr He then asked Mr Mahdawi about an email sent the following day, 18 July 2018 (TD, p 198), about his wife’s name where he wrote: “So we had to find someone to help us and they have written Mohammadi beside Mahdawi by mistake”. Mr He then asked if the Applicant’s wife’s name is Mohammadi. Mr Mahdawi responded: “My wife’s surname is Nasrin Mohammadi, but when we came here, we changed it to Mahdawi to have the same surname.”

47. Mr He put to the Applicant that he stated his wife’s original name was Mahdawi. Mr Mahdawi said the email was a mistake. “When people help me, I cannot read back what they write.”

48. Mr He asked the Applicant about statements he had made about Omid. He said: “If you raise someone from childhood he is like your child.  I said he is my son.  He is like my other children.”

49. Mr He asked the Applicant why his evidence at the hearing now is that Omid is his brother-in-law, and did he agree that is different from saying he is his son.  He responded: “Maybe if someone’s parents die and you raise him as a child he is like a son.  Even though he is 20 now.”

1. Mr He asked Mr Mahdawi whether he knew Omid had been unsuccessful in being sponsored as his son when he applied for Australian citizenship. He responded: “Yes. I was asked to provide DNA which said he wasn’t my son, so I was not successful.”

2. Mr Mahdawi agreed that ‘son’ is different from ‘brother-in-law.’

3. In answer to direct questions from the Tribunal, Mr Mahdawi said his wife’s father is alive, but her mother died a long time ago.  He said that the father ‘was an irresponsible person and that’s why I raised Omid and took responsibility for him’.  Mr Mahdawi went on to say that Omid’s father has since remarried and has other children.

4. Mr Mahdawi was asked about an email dated 18 July 2018 (TD, p 198), in which he wrote that ‘Omid’s parents got killed by a bomb explo[d]ing’. Mr He asked the Applicant how it can be true that he wrote that Omid’s parents were killed, and now the Applicant’s evidence is that his father is alive and has remarried. Mr Mahdawi responded: “The person who helped me because I couldn’t do it added this. This person was trying to help me. They made it worse.”

5. Pressed on whether Omid’s parents were killed in a bomb explosion, Mr Mahdawi told the Tribunal: “No. They were not killed. The father is still alive. The mother died of an illness.  I have no information about his father.”

6. Mr Mahdawi was then asked about providing his old tazkira, with an English translation, stating the name ‘Isaaq Mahdawi’. He was asked to confirm that name was not on the document.  He responded: “No it wasn’t. They don’t put the family name.”

7. Mr Mahdawi was asked if he remembered providing the old tazkira (TD, p 147) with a translation. He responded that he did and could not understand why it had been queried and said that the translator made a mistake. The Applicant said that the translator got the name from his licence and he had not noticed the error himself when it was submitted; his lawyer told him.

8. Mr Mahdawi was asked about his provision of a new tazkira to the Department.  He said he was asked to provide a new one, which is why he applied to the Embassy and went through the process.

9. The Applicant said that the new tazkira was issued on the basis of the old one, and he had presented the old tazkira to the Embassy as part of the process and had been given an Identity Verification Form, which he completed and provided to them.

10. He agreed with Mr He that he only started using the name Mahdawi in Australia but said that when he went to the Embassy they asked him whether he wanted it issued under the old name or under the official name he uses in Australia which was on his driver licence. He said he was given the option.

11. When asked directly whether Omid’s family were his neighbours in Iran, Mr Mahdawi said that they were not, and he did not know why he had suggested that they were in an email to the Department (TD, p 198).  He stated: “I never said this.  I can’t remember who helped me.  I would usually ask a friend.”

12. Mr Mahdawi confirmed in response to direct questions from the Department that he would get a friend to help him with the reply. The friend would then send him the proposed response which he would copy and then send from his own email address.

    CONSIDERATION

    The identity of the Applicant

13. Section 24(3) of the Act means that the Minister must not approve an application for citizenship unless the Minister is satisfied of the person’s identity.  It is, in effect, a prohibition on the Minister exercising his powers under the Act to confer citizenship unless he can be satisfied regarding this requirement.

14. The Courts and this Tribunal have often considered what is meant by the statutory phrase that a person is ‘satisfied’ of a requirement. The leading authority is Briginshaw v Briginshaw (‘Briginshaw’) [1938] HCA 34; (1938) 60 CLR 336. Briginshaw has been contemporarily re-stated by  the High Court (notably in Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 86, by Toohey J for the Court, at [2]). In Briginshaw, Dixon J (as he then was) said:

    The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

15. The Tribunal therefore must be persuaded to a degree of reasonable satisfaction that something put to it is, in fact, the case. The degree of satisfaction may vary according to the consequences that flow from accepting the proposition that is proffered.

16. The Parliament of Australia has decided that being reasonably satisfied of the identity of a prospective candidate for Australian citizenship is essential because, once citizenship is conferred, the citizen becomes entitled to a range of significant rights and privileges and has certain responsibilities.

17. An Australian citizen may enrol to vote.  He or she may stand for elective office or serve on a jury.  A citizen is eligible to be an officer of the Australian Public Service. A citizen is also entitled to apply for an Australian passport. He or she can travel abroad and may avail him or herself of consular assistance when necessary. An Australian passport holder may claim international law protections as a citizen of this country.

18. The Australian Citizenship Policy Instructions (‘CPIs’) state, at chapter 16, that when assessing identity, decision-makers should consider the ‘three pillars of identity’: ‘biometrics, documents, and the person’s life story’.  In terms of the first pillar, Mr Mahdawi has provided photographs and a marriage certificate which includes a photograph, but which is not dated. The Respondent submitted that these documents should be given limited weight.

19. In respect of the second pillar, the provision of documents not provided since a person arrived in Australia, the Respondent had concerns about the tazkira submitted by Mr Mahdawi in support of his citizenship application in 2014 ( which I call ‘the old tazkira’) and contended that the Tribunal should give it no weight in assessing identity. The old tazkira records the Applicant’s name as ‘Mohammad Isaq’.  When the Applicant arrived in Australia in January 2010, he identified himself to officers of the Department as ‘Isaq Hussaini’, that he was 37 years old and was born in Bamyan, Afghanistan.  He reiterated that he was Isaq Hussaini when interviewed on 18 January 2010 and said that the name Mohammad Isaq appears on his tazkira but did not provide a reason for the difference. Mr Mahdawi provided the old tazkira to the Department as evidence of his identity.

20. When he applied for citizenship in December 2014, the Applicant did so in the name Isaaq Mahdawi. He provided a range of documents in support of his identity, including a tazkira issued in July 1974 with an English translation stating that the name on the tazkira was Isaaq Mahdawi.

21. He also provided a Change of Name certificate from the Victorian Registrar of Births, Deaths and Marriages dated 15 October 2014, recording his name change from ‘Isaq Hussaini’ to ‘Isaaq Mahdawi’.

22. When the Department queried the name, the accredited translator who had stated the name on the old tazkira was Isaaq Mahdawi provided a letter stating he had made an error in the translation and providing an amended translation that the name on the old tazkira was in fact ‘Mohammed Isaq’. The Applicant says that the translator appears to have taken the name from his driver licence, which he also had in front of him.

23. The Afghanistan Central Civil Registration Authority advised the Department that the details in the old tazkira do not correspond to the records held in the Population Registration Directorate (‘PRD’); and further that the old tazkira was not issued by the PRD.  Ms Vidler submitted that it would seem that the authorities in Kabul made inquiries of the wrong provincial office and submitted this was why it did not correspond to their records.

24. The Tribunal accepts that an error was made when the old tazkira was translated into English, and that the correct situation is that the name on this document is ‘Mohammad Isaq’.  It is regrettable that this error was made. The Tribunal notes the contentions of Ms Vidler that it appears inquiries were made of a different provincial office from the one where Mr Mahdawi was born.

25. It would seem consistent with all the evidence that the Applicant has given since he first arrived in Australia that he was born in Bamyan province in 1973. The date of issue on the old tazkira of July 1974 is consistent with his evidence that his parents obtained it when he was around one year old, and that is what his mother subsequently told him.

26. It is also consistent with the evidence before me that the Applicant was known in Iran by the name Isaq (sometimes rendered as Isaaq) Hussaini. This is supported by the marriage certificate, the Iranian sports card, and the Certificate of Birth by the Doctor and Midwife and vaccination certificate of Mahdi Mahdawi. I am satisfied this was his name in Iran; and the difference with Mohammad Isaq is not significant or material in my satisfaction of his identity, given the other supporting documents prior to his arrival in Australia.

27. I am satisfied that there has been no subterfuge in the Applicant changing his name from ‘Isaq Hussaini’ to ‘Isaaq Mahdawi’ under Victorian law in 2014.  What has clouded the issue is the different reasons he has proffered for this change. The Applicant told a citizenship officer he changed it to have the same name as other family members (TD, p 202).  However, he also said that his own father and other family members use the name ‘Hussaini’ and wrote that in his citizenship application. 

28. On 17 July 2018, (TD, p 194) the Applicant stated:

    We changed our family name from Hussaini to Mahdawi because first I didn’t like the last name of Hussaini Second my wife’s last name is Mahdawi and I wanted my family to all have the same last name.

29. However, the Applicant’s wife’s family name was Mohammadi, as put in her application for a protection visa and confirmed by Mr Mahdawi in his oral evidence.  It was not Mahdawi.  It may be that he was putting clumsily that her surname is Mahdawi (which it now is, having been legally changed in 2014), and that he wanted his family to all have the same last name.  However, that is not the impression this statement gives.

30. The Applicant states that his wife’s surname was Mohammadi when they married, and the translation in relation to their marriage certificate that it was Mahdawi was a translator’s error.

31. While he has provided confusing and conflicting explanations for the name change, in all the circumstances, I do not find there is anything suspicious about this change, because it has been done overtly and in accordance with the law in Australia. There is no evidence before me that this change was  for any evasive purpose or to perpetuate a fraud.

32. In terms of the old tazkira, it may be that Ms Vidler’s submission that the reason the Kabul authorities told the Department it was verified by their records was because inquiries were made of a province other than where the Applicant was born. However, I do not need to make a finding on that. I am satisfied that the absentee tazkira (‘the new tazkira’) that Mr Mahdawi obtained, by making an application through the Afghanistan Embassy in Canberra, was issued relying in part on the old tazkira and cross-referencing that with other records held by the home government.  A 12 December 2019 letter from the Consul at the Afghanistan Embassy in Canberra confirming the new tazkira was a genuine document was Exhibit A11.

33. The Applicant provided the original of the new tazkira to the Tribunal, and it was viewed at the Tribunal’s Registry by a representative of the Respondent.  No submissions were made by the Respondent that this was not an authentic document. The Tribunal notes that the name ‘Mahdawi’ is placed in inverted commas in the new tazkira, which is consistent with the Applicant’s oral evidence that he was asked by the Embassy officer whether he wanted the new tazkira issued in his official name, i.e. his legal name in Australia, or in his original name.

34. While the marriage certificate in evidence was not an Iranian Government document, I am aware that refugees in Iran are precluded from access to certain apparatus of the State; and that this is a document which attests to who the two individuals were when they were married and is a document issued prior to their arrival in Australia.  It therefore carries some weight.

35. In respect of the third pillar, I am otherwise satisfied by the evidence of certain aspects of the Applicant’s life story as related when he first arrived in this country and has retailed several times. Those aspects relate to his own parents, his wife, and his siblings and children.  I am also satisfied by some of the life story relating to employment, not only from the Applicant, but corroborated by his wife when she was separately interviewed by Department officers in relation to her protection visa claim, with detailed Department notes of that interview (at STD, pp 187-191).  Weighing all the evidence, I am satisfied that the prohibition in section 24(3) of the Act does not apply.

    Is the Applicant of ‘good character’?

36. The Courts have considered the term ‘good character’ on a number of occasions, especially in relation to the character provisions in the Migration Act 1958. In relation to applications for Australian citizenship by conferral, in BOY19 v Minister for Immigration and BorderProtection [2019] FCA 574, O’Bryan J referred to previous judgments about the term ‘good character’ in the Migration Act and then said, at [87] to [88]:

    As discussed earlier, the phrase “good character” refers to the enduring moral qualities of a person and not to their physical or mental attributes or abilities.  The expression does not have a fixed and precise content and necessarily imports a discretionary value judgment informed by the subject matter, scope and purpose of the Act. The expression is concerned with moral qualities that are regarded as a necessary concomitant of Australian citizenship.

    Consistently with Chapter 11 of the Citizenship Policy 2016, respect for the Australian Government and the laws of Australia, and respect for the institutions of government including governmental departments, is consistent with being of good character in the statutory sense. Such respect can be characterised as a moral quality that is relevant to citizenship.  Conversely, disrespect for the Australian Government, the laws of Australia and governmental department reflects adversely on a person’s character in the statutory sense.

37. The Citizenship Policy 2016 His Honour here refers to has since been updated, but it contains broadly similar exhortations.  The delegate who refused Mr Mahdawi’s citizenship application consulted the CPIs to inform their decision. The CPIs are not a legislative instrument. They have been compiled to aid decision-makers exercising the Minister’s delegated authority to come to decisions applying discretionary powers under the Act in a manner that is consistent. 

38. The Policy is not binding on the Tribunal, standing in the shoes of an original decision-maker, but the approach taken by Sir Gerard Brennan as President of this Tribunal in Re: Drakeand Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634, relevantly set out below, has received the approbation of the Courts:

    In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular  case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.

    The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.

39. Consequently, the Tribunal is guided by the Policy in considering whether it can be satisfied of the identity of the Applicant in terms of his application for Australian citizenship.  However, two important things must be kept in mind. First, where the Policy has content which appears to conflict with the Act, the latter prevails. Secondly, where rigid application of the Policy would result in an injustice or leads to a perverse result, common sense must be applied to the particular circumstances of the case to prevent such a result.

40. CPI 15 – Assessing character under the Citizenship Act, states at paragraph 4:

    As a general rule, a person who is of good character would…

    Not practise deception or fraud in dealings with the Australian Government, or other organisations, for example [by]

    Intentionally providing false personal information (such a fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications.

41. The same CPI goes on to remind decision-makers to consider whether, in relation to a wrong-doing, an applicant has demonstrated genuine remorse and also the time that has elapsed since the wrong statement or false information was provided. The CPI then says:

    Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly.

42. Where questions may be raised on the face of material in front of a decision-maker about a person’s character, it is not the task of a decision-maker to embark on an expedition to fossick about for things that might be found to be adverse in a character assessment. Equally, a decision-maker should undertake diligent inquiries to seek further information and clarification where some aspect of a person’s past or current conduct may raise questions or concerns – or be unclear. Such inquiries should also, as a principle of procedural fairness, including putting squarely to a person the material that raises a question, and inviting them to comment.

1. There are a number of pieces of evidence before the Tribunal that support the notion that Mr Mahdawi is of good character. He does not have a criminal record in this country. He has furnished character testimonials from people prominent in the Australian-Afghan community.  He obtained and for a substantial period was occupied in full-time employment as a truck driver, before having to cease owing to a medical complaint.  This illustrates a readiness to make a positive contribution to Australia.  He has furnished evidence of certain trade training he has successfully undertaken in Australia. A number of those providing written testimonials attest to his good standing and positive qualities.

2. However, the Applicant has also provided information to the Department that is not true, in particular about the young man, Omid Hossaini.  Mr Mahdawi maintained that Omid was his son and told the Department that, in terms of Omid’s pursuit of a protection visa.  The visa for which he sponsored Omid is a ‘split family’ visa where an important criterion is reuniting a family unit. 

3. In the course of applying for this visa, Omid was interviewed by a Department officer at the Australian Embassy in Tehran in June 2011 (STD, p 141).  The interviewer was not satisfied about the claimed biological relationship between Omid and his sponsor, Mr Mahdawi, and his wife, Nasrin Mohammadi. Therefore, the Department requested paternity and maternity DNA samples in July 2011. A DNA outcome stated that Nasrin Mohammadi  was not related biologically to Omid Hossaini.  Mr Mahdawi did not provide a body sample to carry out the test, even though the Department followed up with a reminder.

4. Mr Mahdawi submitted in an email to the Department on 17 July 2018 (TD, p 194):

   The relationship between me and Omid is father and step-son, his real name is Omid Hussaini and I do not know where he lives as he stopped talking to me when his visa application got failed and he thought I am not helping him here.

5. The following day, in a further email, Mr Mahdawi told the Department (as written):

   I have being in Afghanistan during the war and at that time omid’s parents got killed by a bomb explosing which from then I brought omid to my family and kept him with me and call as my son and raised him and omid’s family was my neighbor.

6. The information in both of these emails was misleading, and some of it was completely fabricated. Omid Hossaini, it was suggested, as the oral evidence unfolded in the hearing, is the younger brother of the Applicant’s wife. The Tribunal may accept the evidence that Omid was brought up by the Applicant and his wife as if he was a son and a full member of the household.  However, he was not his son, as the DNA results showed, nor the son of the Applicant’s wife.  As siblings share 50 per cent DNA, it is also unlikely that Omid is, as was suggested in the hearing, the brother of the Applicant’s wife.

7. What is particularly concerning to me is that Mr Mahdawi, having made the claim in regard to pursuing a protection visa application for Omid that he was the biological son of him and his wife, and having been presented with incontrovertible evidence that this was not so, nonetheless persisted in saying that he was either his ‘son’ his ‘step son’ or, in evidence in this hearing, his ‘brother-in-law’.  None of these claims would appear to be supported by the evidence.

8. Even if I am generous enough to encompass Mr Mahdawi’s description of Omid as his ‘son’ as reflecting a relationship in the nature of a father-son one, noting the Applicant’s oral evidence that he treated Omid as no different from his other children, the fact remains that on 18 July 2018, in relation to his citizenship application, the Applicant told the Department a story that was simply not true. He said that Omid’s parents had been killed in the war in Afghanistan in a bomb explosion. He also said, cryptically, that Omid’s family was his ‘neighbour’.

9. Mr Mahdawi expressly confirmed in answer to a direct question I put to him that Omid’s family were not his neighbours in Iran. He also said at the hearing that the story about Omid’s parents being killed in an explosion was untrue.  Mr Mahdawi said that his father-in-law was Omid’s father, that Omid’s mother had died, and that the father-in-law had since gone off and remarried and had other children.

10. I might accept the evidence that Mr Mahdawi is essentially illiterate in English. I do not accept the submission that he is illiterate in Dari. His son Benjamin, in separate proceedings in the Tribunal before me, in relation to his own application for citizenship, explained that when he and Mr Isaaq Mahdawi went to attend the Afghan Embassy in Canberra to complete the Identity Verification Forms, the Applicant had to take his son through the forms because they were in Dari, which Benjamin did not easily understand.

11. However, I am prepared to accept that Mr Mahdawi enlisted help from family and unnamed friends, and occasionally paid Dari-speakers, to help him with his citizenship application and in responding to queries from the Department.  His evidence to the Tribunal that he told people what to put into responses, and they then typed them up and sent them to him to ‘cut and paste’ into his own email back to the Department was plausible.  I also accept his evidence that sometimes these people would recommend changes to improve how the responses read.  But I do not accept any contention (and none was explicitly made) that a person who is being dictated a response to type into English would take it upon themselves to create a story about a person’s parents being killed in a bomb explosion, when that story was a fiction. This is more than a stylistic change to improve how something reads. I find that this false information was intentionally included by the Applicant in his responses to the Department.

12. It would seem to me that Mr Mahdawi was caught in a conflict between trying to help Omid’s case in obtaining a protection visa on the one hand, and his own citizenship application, on the other. In so doing, Mr Mahdawi ignored the ‘First Law of Holes’, first propounded in 1911. It can be summarised as: ‘When you find yourself in a hole, stop digging.’[i]  He had claimed Omid as his and his wife’s son in 2011. He should not have persisted in that claim once the DNA evidence had shown this to be false. Instead of abandoning this and potentially supporting Omid’s visa claim as a friend or someone the family cared for in Iran, Mr Mahdawi instead fabricated more stories, and stories that were inconsistent.

13. The Tribunal may make allowances for discrepancies in information provided by a person arriving in Australia in the traumatic circumstances that Mr Mahdawi and his family did.  Where errors are made or information is incomplete, and it is subsequently emended or put into context, such submissions may assume less significance in a global assessment of a person’s character.  Errors of this nature are less significant when they are historical and where they have been retracted and a more accurate and consistent narrative has taken their place.

14. In this case, however, there were a number of requests to the Applicant to clarify information he had provided in relation to his 2014 citizenship application, or to provide additional information. He did so, especially in relation to obtaining character references and, ultimately, a new tazkira. However, he continued to perpetuate a false narrative about Omid, his relationship with Omid and Omid’s personal circumstances. I cannot overlook the fact that this false narrative continued in 2018 and some admissions were only finally made in the oral evidence in this hearing. I remain unconvinced that even the evidence I heard was completely candid. I accept Ms Vidler’s submissions that the provision of this false information was ‘regrettable’ and her remark that if he had better advice at the time, it might not have occurred.

15. The Applicant was vague about who had helped him compose his emails to the Department.  However, Mr Mahdawi is himself responsible for the information he provided.  He confirmed, when pressed in his evidence, that if he sent an email, he is responsible for its contents.  That is a correct assumption. It is important that persons applying for citizenship provide material to the Department that is truthful in every respect. That is a requirement made clear in the declaration at the end of the application for citizenship (TD, p 140). While the declaration applies to the citizenship application form, I consider the general duty continues in relation to other material that may be requested and supplied to supplement that form. That interpretation is supported by section 50(1) of the Act which makes it an offence for a person to make, or cause or permit to be made, a representation or statement and does so knowing that the representation or statement is false or misleading in a material particular.

16. Mr Mahdawi did not provide information to the Department that was truthful in every respect. I do not find that this is a case where a person was reckless as to accuracy of the information he provided or that the materiality of the misleading information is trifling. I cannot come to a conclusion other than to find that the Applicant provided information knowing that it was deliberately false.

17. Because of the recency of this false information being provided, and the context in which it was provided, I find that I cannot be satisfied that he is of good character, in the terms necessary to be satisfied in section 21(2)(h) of the Act.

    CONCLUSION

18. The Tribunal has found that the Applicant has provided sufficient information to satisfy it of his identity so that the prohibition in section 24(3) of the Act does not apply to him.  The Tribunal has further found that Mr Mahdawi’s wilful provision of false information to the Department precludes a finding that he is of good character under section 21(2)(h) of the Act. The consequence is that, under section 21(1A) of the Act, his application for Australian citizenship by conferral fails.

19. The Tribunal notes that this outcome will be disappointing to Mr Mahdawi.  Deputy President Breen said in Re: Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 (‘Fenn’), at [8]:

    …the refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again…

20. I make clear that there is no finding that Mr Mahdawi has not made a worthwhile  contribution to the Australian community since arriving in this country. He has many good attributes, not least supporting and maintaining a loving family, some of whom are now young adults beginning successful and productive careers in Australia. As the learned Deputy President said in Fenn, the Tribunal’s finding also does not affect his current immigration status or entitlement to his current visa. Mr Mahdawi is able to make a fresh application for Australian citizenship. If he does so, he must take special care to ensure that all the information he provides in support of that application is complete and truthful.

    DECISION

21. The Tribunal under section 43(1)(c) of the Administrative Appeals Tribunal Act 1975 –

    (a)sets aside the decision dated 26 November 2018 refusing the application for Australian citizenship by conferral under section 24(3) of the Act, and directs that this prohibition does not apply; and

    (b)otherwise confirms that the Applicant is not eligible for citizenship under section 21(2)(h) of the Act because the Tribunal is not satisfied he is of good character.

    The result is that the decision to refuse citizenship is affirmed.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................

Associate

Dated: 15 September 2021

Date of hearing:	12 July 2021
Counsel for the Applicant:	Ms Jill Vidler
Solicitors for the Applicant:	Vidler & Associates
Counsel for the Respondent:	Mr Zeng He
Solicitors for the Respondent:	Clayton Utz

[i] The First Law of Holes: ‘Nor would a wise man, seeing that he was in a hole, go to work and blindly dig it deeper’. The Washington Post, 25 October 1911, page 6.