Mohammadi and Minister for Immigration and Border Protection (Citizenship) - [2019] AATA 702

Mohammadi and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 702 (12 April 2019)
Division:GENERAL DIVISION
File Number(s): 2016/6202
Re:Aliyar Mohammadi
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:12 April 2019
Place:Brisbane

I affirm the decision of the Minister’s delegate dated 3 November 2016.
..........................[SGD]............................................
Deputy President Dr P McDermott RFD
Catchwords
CITIZENSHIP – permanent resident – application for Australian citizenship – notice of approval to cancel approval for citizenship – cancelled on character grounds – whether the applicant was of good character – the making of false statements – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
Cases
Al Hashimi and Minister for Immigration and Citizenship [2012] AATA 534
Da Wei Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94
Ghamraoui and Minister for Immigration and Border Protection [2016] AATA 254
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Jafferi v Minister for Immigration and Border Protection [2015] AATA 347
Rafat and Minister for Immigration and Border Protection [2017] AATA 1743
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Secondary Materials
Australian Citizenship Policy
J. Ruppel, “The Need for a Benefit of the Doubt Standard in Credibility Evaluation of Asylum Applicants” (1991) 23 Columbia Human Rights Law Review 1
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
12 April 2019
BACKGROUND

The applicant claims that he was born in Afghanistan. The applicant arrived in Australia as an undocumented maritime arrival on 1 February 2010.[1]
[1] T2, 12.
On 22 February 2010, the applicant attended an interview with the Department of Immigration and Citizenship (“the Department”) at Christmas Island. The notes of the interview indicated that the applicant had four children: three children from his first marriage and one child from another marriage.[2] The names of the children have been suppressed for the purposes of this decision.
[2] T4, 71.
On 19 May 2010, the applicant lodged an application for a protection visa.[3]
[3] T2, 12.
On 3 March 2011, Fatema Mohammadi completed an ‘Application for an Offshore Humanitarian Visa’ and listed herself as:[4]
(a)the wife of the applicant.
(b)the step mother to LHE.
(c)the step mother to WTS.
(d)the step mother to BTG.
(e)the biological mother of ZYX.
[4] T6, pp.78 – 80.
On 20 March 2011, the applicant completed a ‘Refugee and Special Humanitarian Proposal’ to enter Australia on behalf of Fatema Mohammadi and listed her as:[5]
(f)the wife of the applicant.
(g)the step mother to LHE.
(h)the step mother to WTS.
(i)the step mother to BTG.
(j)the biological mother to ZYX.
[5] T5, pp.72 – 73.
On 27 June 2013, Mrs Mohammadi lodged an ‘Application for migration to Australia by a partner’ and listed ZYX (biological son) and LHE (step-son) as her children.[6] In the form it listed the applicant’s children as LHE and ZYX.[7]
[6] ST4, p.19.
[7] ST4, p.22.
On 15 August 2013, Mrs Mohammadi lodged her ‘Personal Particulars for Assessment including Character Assessment’ and identified her children as ZYX (son) and LHE (step son).[8]
[8] ST5, p.43.
In an undated letter, the applicant advised that WTS and BTG were not his children, but rather that they were his deceased brother’s children.[9]
[9] T15, p.184.
On 2 September 2013, the application for Special Humanitarian visa was refused.[10]
[10] T2, p.12.
On 25 May 2014, the applicant lodged an application for Australian citizenship.[11]
[11] T2, p.13.
On 8 January 2015, the applicant’s application for Australian citizenship was approved.[12]
[12] T2, p.13.
On 5 February 2016, the applicant attended an interview with the Department, with the aid of an interpreter.[13]
[13] T2.
On 29 July 2016, the applicant was invited to make submissions regarding the Department’s proposed cancellation of his citizenship due to concerns of character.[14]
[14] T2.
On 14 September 2016, a representative for the applicant provided additional material to the respondent regarding its concerns including statutory declarations and a character reference.
On 3 November 2016, the Department cancelled the applicant’s approval of citizenship.[15]
[15] T2.
On 15 November 2016, the applicant applied to the Tribunal for review of the Department’s cancellation decision.
LEGISLATIVE FRAMEWORK
The applicant’s approval of his application was cancelled pursuant to s 25(2)(b)(iii) of the Australian Citizenship Act 2007 (Cth) (“the Act”) based on grounds of character.
Section 25 of the Act provides that:
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.
Failure to make pledge of commitment
(3) The second situation applies if:
(a) the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and
(b) the person's reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.
The Australian Citizenship Policy (“the Policy”) provides some guidance as to the matters that should be considered when determining a person’s character. The guidelines are not exhaustive. Chapter 11 of the Policy outlines that characteristics that define “good character” are those of someone who, for example, respects and abides by the laws of Australia and who is honest and truthful in their dealings (not deceptive or fraudulent) with the Australian government, other governments and organisations.
EVIDENCE
Applicant’s Statement dated 13 June 2017
The applicant’s statement acknowledges that the applicant has previously provided false information about his family composition to the Department claiming that WTS and BTG were the children from his first marriage when in fact they are his deceased brother’s children. The applicant confirms that his previous migration agent used the false information from his protection visa application for his Special Humanitarian visa application. The applicant states that he could only contact his previous migration agent by phone as the agent was based in Sydney and that at the time, the applicant did not initially appreciate or understand that the false information was going to be used in the Special Humanitarian visa.
The applicant submits that the Department did not consider in full his personal circumstances at the time the false information was provided. The applicant submits that because he is illiterate he was entirely dependent on the advice of others and was repeatedly told that if his brother’s children were not declared to be his own then they would not be able to join him to Australia. The applicant considers he was gullible in believing this at the time.
The applicant submits that at the time he fled Afghanistan, he had been caring for his brother’s children for over 5 years and could not bear the thought of leaving them behind without any family support.
The applicant submits that he ‘never felt good about providing false information to the Department but at the time believed that disclosing the truth would mean I would never see [WTS] and [BTG] again’. The applicant submits that he believed at the time that if he disclosed the truth the Department would not have accepted that he had adopted his deceased brother’s children.
The applicant states that after becoming increasingly familiar with Australian values and culture his guilt continued to grow about the false information. The applicant also states that he started to appreciate the distinction about the status of children under Australian law which meant that his brother’s children would not be seen as his own.
The applicant states that around June 2013, the applicant called the previous migration agent to discuss the delays in the Special Humanitarian visa application and also queried how to best correct the information provided. The applicant was advised that starting a fresh application would be the best way forward and that a partner visa best suited the family’s current circumstances. The applicant instructed the agent to proceed with the new application and disclose the truth.
The applicant states that the Department mentioning DNA testing during the interview on 5 February 2016 was not the reason for disclosing the truth and that he learned about the DNA testing during a conversation with the migration agent about the partner visa process. The applicant states that he had already instructed his agent to disclose the truth prior to learning of the DNA testing. The applicant states that he does not recall making comments about DNA testing during the interview but accepts he could have. The applicant however, states that at the time he was under significant stress and felt incredibly anxious particularly as he had no one there to support him. The applicant considers that he struggled to express himself clearly and that the Departmental officers had asked him to recall the distressing events of his mother’s murder so by the end of the interview he was overcome with grief. The applicant states he has long suffered from diagnosed depression, anxiety and PTSD.
With regards to character the applicant states that since 2010 he has held full-time employment and is a valued employee of Teys. He has always tried his hardest to build a life for himself in Australia, always paid taxes, remained engaged in the local community and does not have a criminal record. The applicant submits that providing the false information to the Department was a misguided decision and he is not a deceptive or dishonest person.
Statutory Declaration of Nematullah Alemi dated 10 September 2016
Nematullah Alemi has known the applicant for 20 years and submits that he has always found him to be a reliable, very honest and trustworthy person. Mr Alemi considers that the applicant never lies and when he does he cannot live in peace without correcting it. Mr Alemi considers that the applicant has a lot of respect for Australian values and the rule of law. Mr Alemi is aware that the applicant told the Department that his brother’s children were his own.
Statutory Declaration of Sayed Sajjadi dated 10 September 2016
Sayed Sajjadi has known the applicant for over 20 years and they have lived together on many occasions. Mr Sajjadi considers the applicant to be very honest and reliable who always shows an immense amount of respect for everyone around him. Mr Sajjadi considers that the applicant is very hard-working and has always contributed to the Australian community. Mr Sajjadi is aware that the applicant listed his brother’s sons as his own and considers he did that so he could continue supporting his nephews. Mr Sajjadi also considers that the applicant took the initiative to withdraw his nephews from his wife’s application form to correct the record, well in advance of any review by the Department.
Letter of Mark Bube, HR Manager at Teys Australia Rockhampton dated 8 February 2017
Mark Bube confirms that the applicant has been employed on a full-time basis with Teys since 18 April 2011. Mr Bube considers the applicant is an honest and reliable worker who gets along well with his colleagues.
Letter of Mohammad Azad dated 24 August 2016
Mr Azad has known the applicant for six years and considers the applicant to be a very simple, honest, reliable and conscientious person of great integrity. Mr Azad submits that the applicant is a positive person who contributes to the community by being engaged and paying taxes, and a person who goes out of his way to help others.
TRANSLATION OF DEPARTMENTAL INTERVIEW
There are the following translations of the Departmental Interview:
Translation #1 – Applicant’s Statement of Facts, Issues and Contentions dated 28 June 2017 at paragraph 44:
[BTG] and [WTS], because they don’t have a father, I am their father. I’ve raised them, that’s why I wanted to bring them to me, because if I am not there who will look after them, that’s why I said they’re my sons. But this time they said they will do a DNA test, so I said the truth, they’re my brother’s sons, I’ve raised them as my sons and now it doesn’t matter whether they are here or there…[cut off by interpreter]
Translation #2 – uncertified translation produced during the hearing on 4 December 2017 at page 3:
[BTG] and [WTS] (the one pictured) because they don’t have a father, I am there (sic) father, I nurtured them/helped them grow up, because of this I wanted to I wanted to bring them here, because they some time, if I am not there, who would look after them, because of this I put them down as my son. This time they said that here that they do a DNA or something, so the truth is that they are my brother’s son, as I helped them to grow/nurtured them like my own, no too, it doesn’t matter where they are here or there.
Translation #3 – partial NAATI translation filed on 18 December 2017:
[BTG] and [WTS], the ones that you have just shown me, (the pictures) right. They ([BTG] and [WTS]), because they don’t have a father, I am their father. I’ve raised them, that’s why I wanted to bring them to me, because when, I am not there who will look after them? That’s why, I recorded them like as my sons. But this time, they (people) said they will do the DNA tests, so, I said the truth, they’re my brother’s sons, however, I’ve raised them as my sons and now it doesn’t matter whether they are here or there…
The respondent submits that the applicant’s translations of interview should not be accepted by the Tribunal and that the Departmental record of interview should be preferred.
Translation #4 – the Departmental record of interview
[BTG] and [WTS], the ones that you have just shown me. They are my brother’s kids, my brother’s sons but because my brother is no longer I put them under my kids so at least they could have a future and when they said that there is going to be DNA testing that’s why I said the truth and said that they are my brother’s kids.
There is clear dispute between the parties as to which translation(s) of the Department’s interview on 5 February 2016 should be accepted by the Tribunal. The applicant submits that the Tribunal should not accept the respondent’s record of interview as it contains translation mistakes which suggest the applicant is not of good character (that is, that the applicant only told the truth about the incorrect information about his sons out of fear of getting caught because of the DNA tests) and should rather accept the applicant’s translation(s) of the interview, in particular the partial NAATI translation in lieu of a full translation. The applicant submits that the partial translation corrects the mistakes made in the Department’s translation and proves the applicant’s good character.
The applicant submits that Mr Amani explains in the affidavit that the applicant speaks Hazaragi which is a Daikondi dialect whereas the interpreter spoke in the Dari language with a Kabuli accent. Mr Amani explained that Australia recognises Dari and Hazargi as separate languages. Further, the translator during the interview summarised the interviewer’s questions and the applicant’s answers and sometimes did not even translate to the applicant what the officers were saying. Mr Amani has highlighted an instance where the interviewer asks if there is a problem with the translation because she noticed the applicant being confused at times. The applicant ultimately submits that it is nonsensical to accept the Department’s record of interview when the interpreter was not fluent in the language required and that the translator’s mistakes are the fundamental basis of the respondent’s claim that the applicant is not of good character.
The applicant submits that the applicant did not make any clear, unambiguous statement about the reasons behind his admission or what motivated it. The simplistic translation of “that’s why” is misleading and unsupported by the words uttered by the applicant. The applicant also submits that he was cut off by the interpreter so was unable to elaborate or provide clarification. The applicant further submits that even if the Tribunal is not satisfied that the admission was made without a pure motivation, this alone does not constitute a sufficient reason to find that the applicant is not of good character.
The respondent submits that the Department’s translation of interview should be preferred as the applicant has not provided authoritative evidence which demonstrates that the Department’s record of interview is incorrect or should otherwise not be accepted by the Tribunal. The respondent further submits that the translation contained within the applicant’s Statement of Facts, Issues and Contentions, and the uncertified translation should not be accepted by the Tribunal as they have not been certified by an accredited organisation.
The respondent considers that little weight should be afforded to the applicant’s partial NAATI translation of interview in circumstances where the translation itself is described as a “brief review interpretation” undertaken by Mr Amani. The respondent submits that while Mr Amani identified six instances of ‘errors’, these ‘errors’ do not refute the fact that the applicant admitted that he knowingly provided false information to the Department about his brother’s sons, and that he only admitted the truth once he learned that there would be a DNA test.
The respondent submits that the Tribunal should accept the applicant’s admissions as a correct description of the reason leading to the applicant advising the Department of false information. The respondent submits that the applicant’s submissions that he decided to tell the Department the truth once becoming familiar with the values and culture of Australia are an attempt to convince the Tribunal that he is a person of good character. The respondent submits that even if the Tribunal accepts the applicant’s translations, in any event, in each of the translations the applicant does not dispute admitting that he knowingly provided false information to the Department and admitted that he told the truth because he was told that there would be a DNA test.
SUBMISSIONS
Applicant’s Submissions
The applicant submits that he acted on misguided advice to include BTG and WTS as his sons when he lodged his application for a protection visa on 19 May 2010.
The applicant submits that he engaged a migration agent to lodge the Special Humanitarian Visa and the agent relied on the documents provided in the applicant’s protection visa application to complete the Special Humanitarian Visa documentation. The applicant submits that in around June 2013 the applicant sought advice from the migration agent about correcting his family composition. The advice received was to discontinue the Special Humanitarian Visa and bring a fresh application containing the correct information.
The applicant submits that the false information provided was entirely inadvertent and should be given no weight in the assessment of the applicant’s character. The applicant elaborates that the information was given inadvertently for the following reasons:
·The migration agent relied upon the family composition information provided in the applicant’s protection visa in order to complete and lodge the Special Humanitarian Visa application, rather than upon instructions given by the applicant.
·In relation to the Special Humanitarian Visa – the applicant relied exclusively on the assistance of a migration agent whom he trusted to complete the application correctly.
·All of the applicant’s dealings with the migration agent were conducted over the phone (agent interstate).
·As the applicant is illiterate, the applicant relied exclusively on the expertise of the migration agent and was unable to adequately verify the contents of the Special Humanitarian Visa application.
·As a result of the above, the applicant was not reasonably aware that the Special Humanitarian Visa contained false information prior to its lodgement.

The applicant submits that he is remorseful for incorrectly declaring his brother’s children as his own and that his deception falls at the lower-end of the spectrum of deceptive behaviour because:
·     The applicant’s claim that he was the father of BTG and WTS was not without rational basis. The applicant regarded himself as the father of these children.
·     There was no malicious intent on the part of the applicant to defraud the government or obtain a visa outcome for which he was not otherwise eligible as the applicant was telling the truth at the time as he knew it. The applicant submits that formal adoption processes do not exist in Afghanistan as it is not recognised under Islamic law, however, the concept of guardianship is practised culturally and is codified in the Afghan Civil Code and according to Afghan cultural norms, the applicant had been the father of his brother’s children for all intents and purposes for the five years prior. The applicant took on his brother’s children as his own to protect the children from living a life of destitution and abuse, which is submitted as often being the case when there is a loss of the breadwinner of the family. The applicant also submits that the Migration Act and its Regulations recognise children adopted through cultural custom and facilitate their inclusion as visa applicants.
·     The applicant’s deception was triggered by his reasonable reliance on misguided advice at the time of arrival in Australia and the accumulative effect of other mitigating circumstances.
·     The applicant’s deception was limited in scope and did not involve information material to the determination of his protection visa application.
The applicant submits that there were mitigating personal circumstances applicable at the time of providing false or misleading information to the respondent which are relevant in assessing the applicant’s character. The applicant submits that mitigating factors include “periods of psychological disturbance” and that the applicant’s judgment was affected by multiple and concurrent extenuating personal circumstances which directly influenced his decisions to provide false or misleading information to the Department.
·     Illiteracy – the applicant cannot read or write in his native language, or any other language.
·     Ignorance of migration law – the applicant was in a particularly vulnerable position when arriving in Australia given his unfamiliarity with the complex Australian migration laws and was initially unable to educate himself or seek advice about the law independently due to his illiteracy and reliance on his ethnic community.
·     Mental illness – the applicant was suffering from the symptoms of mental illness, in particular depression, anxiety and post-traumatic stress disorder at all relevant times. It is reasonable to conclude that the applicant’s judgment at the time of false disclosure was affected by his poor mental health.
The applicant submits that the applicant has demonstrated good character for a sufficiently long period since his admission to justify an affirmative finding of good character. At the time the decision was made, just over three years had elapsed since the applicant had admitted to his wrongdoing. The applicant was in stable employment, fiscally responsible and has always abided by the laws. The applicant relies on the finding in Jafferi v Minister for Immigration and Border Protection [2015] AATA 347 where despite the applicant’s commission of a serious offence, sufficient time (two years) had passed to justify a positive finding about the applicant’s character.
The applicant submits that the admission was made honestly and sincerely and that the applicant took initiative to correct a mistake by acting on his conscience which demonstrates good character.
The applicant considers that the respondent’s reliance on a single translated comment made by the applicant during the interview is unreasonable as it was “fraught with inaccurate translation, inappropriate questioning and during which the applicant acutely experienced symptoms of his mental illness”.
The applicant submits that the comment regarding DNA testing should be given no weight, or limited weight for the following reasons:
·     The applicant was unrepresented.
·     The applicant did not have a support person.
·     The Department’s officers pursued irrelevant or alternatively inappropriate lines of enquiry during the interview, including uncontroversial matters that were already assessed years earlier as part of the applicant’s protection claims:
o   The applicant was asked to recall and recount details and events surrounding his mother’s traumatic death.
o   The applicant was asked to recall and recount the events leading to the capture and disappearance of his brother.
o   The applicant was asked to recall and recount the death of his eldest brother, including when and where he died.
·As a result of the above, the applicant experienced exacerbated symptoms of his mental illness including loss of concentration, depressive thoughts, forgetfulness and emotional outbursts. It is reasonable to conclude that the accuracy of the applicant’s responses were negatively affected by his mental illness.
·At no point during the interview was the applicant asked for clarification about his comment regarding DNA.
·There were substantial inaccuracies in the translation of the applicant’s responses throughout the interview and importantly, during the exchange in which the applicant mentioned DNA testing.
The applicant submits that his good conduct prior to and following the false disclosure, or at the very lease since admitting the wrongdoing, far outweighs the negative inferences that can be drawn about his character. The applicant also submits that he is remorseful for the mistake and has always cooperated to correct the record.
Respondent’s Submissions
The respondent submits that the applicant knowingly provided false information to the Department when he arrived in Australia and applied for a protection visa in 2010, and also in his proposal for his family to receive Special Humanitarian Visas in 2011.
The respondent submits that the applicant does not dispute making false declarations to the Department as evidenced by his statutory declaration dated 10 September 2016 and his statement dated 13 June 2017, in which he accepted he had previously provided false information about his family to the Department including declaring his brother’s children as his own.
The respondent submits that the applicant provided false information to the Department on at least three occasions over a period of 12 months and the applicant did not take steps to correct the record until June 2013.
The respondent submits that the provision of false or misleading information is a serious concern and under s 234 of the Migration Act 1958 (Cth) can constitute an offence. The respondent submits that even viewing the applicant’s conduct in isolation demonstrates a blatant disregard for Australian laws and truthfulness when dealing with Australian authorities.
The respondent submits that the applicant only sought to correct the record when he realised that he may be subject to DNA testing by the Department. The respondent also disagrees that there were mistranslations of statements made by the applicant in the interview with the Department (as asserted by the applicant). The respondent submits that the Tribunal should accept the Department’s translation record as correct in the absence of evidence to the contrary: however, submits that in the event that the Tribunal accepts the applicant’s translation, this alternative translation still highlights that the applicant knowingly admitted to providing false information to the Department and only told the truth because there would be a DNA test.
The respondent further submits that the applicant does not take responsibility for his actions by downplaying the seriousness of his conduct and by being misled into providing false information.
The respondent submits that whether the applicant is illiterate and ignorant of migration law does not excuse him from knowingly providing false information on at least three separate occasions.
Reports of Dr Alan Keen, clinical psychologist
The applicant has provided two reports from Dr Alan Keen, clinical psychologist and neither of these reports were tendered in evidence by the applicant. However, as the reports were submitted with the applicant’s final submissions after the hearing they have been considered.
The applicant submits that the reports of Dr Keen should be given weight by the Tribunal as Dr Keen has the expertise to explore the link between someone’s behaviour and the illnesses of Persistent Depressive Disorder and Post-Traumatic Stress Disorder. The applicant submits that Dr Keen’s reports explain the very situation and context of the applicant since his migration to Australia.
The respondent submits that Dr Keen was not made available for cross-examination at the hearing and accordingly did not have an opportunity to test Dr Keen’s evidence. The respondent also submits that the reports of Dr Keen are not relevant to the Tribunal’s assessment of the applicant’s character in circumstances where Dr Keen was engaged to treat the applicant in relation to some difficulties he was experiencing. The respondent also contends that while Dr Keen has provisionally diagnosed the applicant with persistent depressive disorder together with post-traumatic stress disorder, these diagnoses do not explain the applicant’s conduct in knowingly providing false information to the Department. The respondent contends that suffering from persistent depressive disorder and post-traumatic stress disorder is not a relevant mitigating factor in the circumstances.
CONSIDERATION
Section 21(2) of the Act provides that:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
……………………….
(h) is of good character at the time of the Minister’s decision on the application.
This application is focused on whether the applicant was of “good character” in terms of s 21(2)(h) of the Act. The Act does not contain a definition of the expression “good character”. This expression was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 when reviewing a decision made under the former s 180A of the Migration Act 1958 (Cth). Deputy President McMahon stated (at 154-155):
The Macquarie Dictionary defines character as
“1. the aggregate of qualities that distinguishes one person or thing from others;
2. moral constitution, as of a person or people;
3. good moral constitution or status;
4. reputation;
5. good repute;
6. an account of the qualities or peculiarities of a person or thing.”
In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Lee J remarked (at 431):
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 Irving, Davies J remarked (at 427-428):
The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision…
I respectfully agree with the observations of Deputy President Forgie in Da Wei Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94 who remarked (at 133):
It would seem, then, that the authorities are drawing attention to a person’s ability to know what society considers good, right and proper and to conduct him or herself in a manner that accords with society’s values.
I am essentially required to have regard to the evidence before the Tribunal to make what Davies J referred to as a “value judgment” of whether the applicant was of good character at the time of the decision of the delegate.
The Australian Citizenship Policy gives guidance as to the matters that I should consider in determining whether the applicant was of good character.
It is to the applicant’s credit that he has been gainfully employed in Australia. I am certainly able to consider his contribution to society through his employment in determining whether he is of good character.[16] However, what is a matter of concern is whether the applicant can be regarded as having made false statements to the Department.
[16] Al Hashimi and Minister for Immigration and Citizenship [2012] AATA 534 at [53].
Honesty in making statements to Departmental officers has long been regarded as indicative of the good character of an applicant. In Re Lachmaiya and Department of Immigration and Ethnic Affairs, Deputy President McMahon stated (at 155-156):
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.
When the applicant arrived in Australia at Christmas Island he was interviewed by Departmental staff. On 22 February 2010 he claimed that three children were children from his first marriage. The applicant in his witness statement (at [4]), which was signed on his behalf by his solicitor, contains the following paragraph:
“I do accept that I previously provided false information about my family composition to the Department when I first arrived in Australia and sought protection. I claimed that [WTS] and [BTG] were children from my first marriage when in fact they were children of my deceased brother”.
The false information that these two children were children from his first marriage was later contained in the application for a Global Special Humanitarian Visa. In that application the partner of the applicant answered “No” to the question “Are there any children included in this application who are not the biological children of either you (the main applicant) or your partner?”.[17] Although the applicant did not sign the application, it is clear that he was behind the application. This was confirmed in the witness statement of the applicant where (at [5]) he remarked: “I understand that this false information was used in relation to the Global Special Humanitarian Visa (GSHV) that I proposed for my wife and children”. The application form for the Global Special Humanitarian Visa contained the following acknowledgement: “WARNING: Giving false or misleading information is a serious offence”.
[17] T6, p.86.
In reliance on the admissions of the applicant that he provided false information I find that the applicant provided false information in two respects, first, that WTS and BTG were his own children and secondly, that the children were the children of his first wife.
The applicant submits that he told the truth of his relationship as he knew it at the time based on his personal paternal relationship to WTS and BTG as he had been providing for all of their needs for five years since the death of the boy’s father and based on Afghan cultural norms. The applicant also submitted that “formal adoption processes do not exist in Afghanistan and notions of guardianship, which refer to paternal obligations for education, development, health, security and education are practised culturally”. The lack of formal adoption processes in Afghanistan was emphasised by the applicant in giving evidence.
The case of the applicant is that the Department has “wrongly separated Mr Mohammadi’s conduct from its relevant cultural context, which has resulted in a misinformed application of the ‘good character’ requirement”. Certainly it has been long appreciated that cross‑cultural communication is a matter that has to be considered in evaluating credibility of applicants for asylum.[18] There have been cases where this Tribunal has not found evidence of bad character where an applicant had incorrectly presented his culturally adopted children as his biological children in a number of visa applications.[19] However, in my view this is not such as case where the false statement can be explained because of a cultural context.
[18] See generally, J. Ruppel, “The Need for a Benefit of the Doubt Standard in Credibility Evaluation of Asylum Applicants” (1991) 23 Columbia Human Rights Law Review 1.
[19] Rafat and Minister for Immigration and Border Protection [2017] AATA 1743, [58].
Even if it is accepted that WTS and BTG were the culturally adopted children of the applicant, the applicant’s statement that they were the children of his first wife is not excusable and indicates a lack of moral constitution. It is a matter of concern that when the applicant first sought the protection of Australia he had provided such false information to the Department. This false statement that his first wife was the mother of the two children was a deliberate falsehood.
The applicant has taken issue with the translation of the Department. However, the partial NAATI translation, which the applicant himself had filed after the hearing, contains cogent evidence for his motivation for this deliberate falsehood when he remarked: “I am not there who will look after them? That’s why I recorded them like as my sons”. Support for my conclusion that the applicant made a deliberate falsehood is in his statement dated 13 June 2017 where he remarked that: “disclosing the truth would mean I would never see [WTS] and [BTG] again”. It was a deception that he maintained for some time.
The applicant eventually disclosed to the Department that the two children were not his biological children. However, I do not accept his evidence that he did this as “a positive act of honesty and good character”. The reason why he made this disclosure is because a DNA test would reveal the repeated deception of the applicant. The partial NAATI translation, which the applicant himself filed after the hearing, contains the sentence: “But this time they (people) said they will do the DNA tests, so, I said the truth, they’re my brother’s sons”. The conclusion that I have drawn after reading this translation which was provided by the applicant is that he disclosed that he was not the father of the two children to the Department because of the possibility of DNA testing. The record of interview of the applicant reveals another reason why he made disclosure of the true circumstances regarding his brother’s sons. The applicant stated that he withdrew his brother’s sons from the application because his brother’s sons had gone to Europe. [20] This explains a more plausible explanation of why the two children were not included in the 2013 application for the Global Special Humanitarian Visa. This aspect of the translation was not challenged by the applicant.
[20] Exhibit E.

The applicant raised a number of matters concerning the questioning process at the Departmental interview. The applicant has complained about what he considers to be “inappropriate lines of enquiry during the interview including uncontroversial matters that were already assessed years earlier as part of the applicant’s protection visa”. However, there is nothing objectionable about Departmental officers asking such questions particularly where they have reservations about the credibility of an applicant who has made a false statement when he first sought the protection of Australia. The applicant asserted that the questioning process exacerbated symptoms of his mental illness. However, the applicant did not call Dr Keen to give evidence about any mental illness and his opinion concerning his provisional diagnosis could not be tested. In the circumstances I do not consider that there is cogent evidence that the applicant had a mental condition when the false statements were made.
When the applicant was giving evidence the representative of the applicant had not objected to the quality of the translation of the evidence of the applicant. However, when submissions were made after the conclusion of the evidence of the applicant it was only then that the representative of the applicant took issue with the accuracy of the translation by the interpreter who was already excused from attendance.
In Ghamraoui and Minister for Immigration and Border Protection [2016] AATA 254, Member Professor McCallum AO explained (at [15]) that mitigating factors include whether the person has accepted responsibility and shown remorse. On behalf of the applicant it has been contended: “The applicant has consistently expressed remorse for his mistake”. However, I do not consider that the deliberate falsehood of the applicant can be regarded as having made a mistake. I also do not find that there is evidence upon which I can find that the applicant can be regarded as consistently expressing remorse.
I consider the making of the deliberate falsehood at a time when the applicant was given the protection of Australia as indicating that the applicant was not of good character of the applicant. This deliberate falsehood was repeated in the application for the Global Special Humanitarian Visa. There is no cogent evidence which enables me to conclude that the character of the applicant was somehow redeemed when the delegate cancelled the approval of citizenship. The evidence of the applicant concerning why the false information concerning WTS and BTG was contained in the application for the Global Special Humanitarian Visa is inconsistent. WTS and BTG were listed as his children in the application for the Global Special Humanitarian Visa which he has stated he had “proposed for his wife and children”. It is not at all convincing why even after the delegate gave his decision that the applicant asserted in 2017 that “I did not initially appreciate or understand that the false information about [WTS and BTG] would be used in the GSHV application”. The failure of the applicant to accept responsibility for the deliberate falsehood even after the decision of the delegate fortifies me in my conclusion that the applicant was not of good character at the time of the decision of the delegate in terms of s 25(2) of the Act. The applicant was given the opportunity after the hearing to call other witnesses, such as his former migration agent or an interpreter, to give evidence: however, the applicant did not exercise that opportunity.
This application raises questions as to the administration of the Act. The applicant is required under s 21(2)(e) of the Act to have a basic knowledge of English. However, the applicant in his submissions (at [28]) essentially contends that he is illiterate and “cannot read or write in his native Hazaragi or any other language”. In these circumstances it is difficult to see how the applicant can be qualified in terms of s 21(2)(e) of the Act. If I had found that the applicant was of good character (which is not the case), I would nevertheless have remitted the application to the Minister to ascertain whether the applicant satisfied s 21(1)(e) of the Act.
CONCLUSION
I affirm the decision of the Minister’s delegate. I consider that the Minister can under s 25(1) of the Act cancel an approval given to the applicant under s 24 of the Act. The applicant has not become an Australian citizen under s 28 of the Act by making a pledge of commitment. The applicant does not satisfy the eligibility criteria under s 25(2)(b)(iii) of the Act by being not of good character at the time of the decision of the delegate.
DECISION
I affirm the decision of the Minister’s delegate dated 3 November 2016.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.......................[SGD].....................................
Associate
Dated: 12 April 2019

Date of hearing:

Date final submissions received:

4 December 2017

3 July 2018

Solicitor for the Applicant:

Solicitors for the Respondent:

Beena Rezaee Legal and Migration

Clayton Utz