MBQD and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 2452

MBQD and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2452 (10 August 2023)

Division:GENERAL DIVISION

File Number(s):      2022/7042

Re:MBQD

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:10 August 2023

Place:Sydney

The reviewable decision is set aside and the matter is remitted to the respondent with a direction that the applicant is of good character and meets the requirements of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

...................................[SGD].....................................

Deputy President B W Rayment OAM KC

CATCHWORDS

CITIZENSHIP – good character – provision of false paternity information – Iraq – decision under review set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

10 August 2023

1. The applicant applied for citizenship by conferral. A delegate refused her application on the basis that documents provided by her in support of the application were false, with the delegate not being satisfied the applicant was a person of good character for the purposes of s 21(2)(h) of the Australian Citizenship Act 2007. She sought review in the Tribunal.

2. The Minister opposed the application and made submissions consistent with decisions made by a senior member of the Tribunal in Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082, at [82]-[84]. In the course of the reasons in that matter it was said that “Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard”.

3. If a proposed new citizen deliberately makes false statements to government, it is fair to say that they may well not be found to be of good character. On the other hand, proposed citizens may be able to show how such statements came to be made, especially if the official documents from another country with a different culture are involved. Such a case should be dealt with on its merits, as all cases should.

4. The applicant has married several times, most recently to her long-time lover. That lover is the father of two of her children, born in Iraq. The lover was a neighbour of hers, known to her family. The family practises the Muslim religion. In Iraq, birth certificates are issued by the hospital in which the birth takes place.

5. The applicant said that if it became known that her present husband was the father of the children although she was married to her then husband, she would be killed, the children would be killed, and her present husband would be killed. The killers, she believes, would have been her own family members and other neighbours. Adultery is apparently treated as an offence justifying murder.

6. The applicant on several occasions provided the department with genuine birth certificates falsely naming her then husband as the father of each child.  One certificate was issued in Iraq, and the other in the United Arab Emirates.

7. According to the Iraqi birth certificates of the elder of the two children, her first husband was the father of the child. According to the birth certificate of the younger child, her second husband (whom she had married in the United Arab Emirates) was the father of that child. In fact her third husband, before he married the applicant in Australia, was the biological father of each of the two children. The children now live with the applicant and her third husband.

8. The circumstances of this case are very unusual. One matter to be noted is that the applicant has never committed any offence and is, on the face of it, apart from the matters relied upon in this case by the Minister, of good character.

9. The applicant was cross-examined by Mr McLaurin for the Minister. She explained that although she had had relations in the UAE with her present husband, she was ill when the birth of the younger child took place and was confused as to whether her second or third husband was the father. A paternity test in this country has now established that the applicant’s third husband was the father of the younger child. The third husband, like the second husband, is an Australian citizen. The department is presently considering whether the younger child is entitled to citizenship by descent, since her biological father is the third  husband of the applicant. 

10. During her cross-examination, the applicant advanced an explanation for why she was unsure, when her younger child was born, whether the father was her second or third husband. The cross-examiner put before her travel records for the second husband which showed that the second husband could not have been the father of the younger child because he travelled to Australia during the period when the child must have been conceived. She said that because she lived in an Islamic country, and because her second husband later admitted that he was the father of the younger child, she could not deny what he said. She also explained that she was ill at the time of the birth of the younger child in the UAE.

11. The applicant said that she met her third husband in Iraq in 1996, when she was still married to her first husband. She said she fell in love with her present husband in 1996. Asked why she did not marry her third husband in the UAE and instead married her second husband, she said she then feared that it may be discovered that she and he were lovers in Iraq. She was particularly then concerned about her elder child, who was then nine years old.

12. The applicant does not read the English language and said she was not able to read various documents put before her for signature while she was overseas.

13. The applicant provided to others genuine birth certificates for both children. It is clear that they contain false information, and the applicant has now told the department the truth about the paternity of both children. She never doubted, as I understand her evidence, that her third husband was the father of the elder child. She was also ashamed about the children having been conceived adulterously.

14. On the whole, I think that the applicant, who was clearly in dangerous circumstances in Iraq, is still ashamed about the true circumstances of the paternity of the two children. She knows other Iraqis in Australia and thinks that if the facts revealed to the Tribunal in the evidence come out about in the community, her daughters may never find husbands in the community.

15. The applicant also said at some stage that one of her children was an adopted child, having been born to her deceased sister. That appears to me to have been another attempt on her part to cover up the adultery.

16. Lies can be told by persons of good character. Lies do not, as such, establish that a person is not of good character.

17. It seems to me that the steps which the applicant took to deal with a state of affairs stemming from her own adultery with the person whom she has now married was of such a quality in her culture that she and others whom she loved would be put in danger, that she was put into a very difficult situation. The lies she told were not for personal gain, and were out of character for her. The difficulty of the applicant makes the false information once presented to the department more understandable, and such as to be capable of being overlooked in her special circumstances.

18. In the result I am satisfied that despite some of the matters mentioned above, the applicant is of good character. The reviewable decision will be set aside and the matter will be remitted to the respondent with a direction that the applicant is of good character and meets the requirements of s 21(2)(h) of the Australian Citizenship Act 2007.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

......................................[Sgd]..................................

Associate

Dated: 10 August 2023

Date(s) of hearing:	19 July 2023
Advocate for the Applicant:	Mr B Al Musawi, Australia Migration Centre
Solicitors for the Respondent:	Mr H McLaurin, MinterEllison