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

Nazari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2000 (30 June 2021)
Division:GENERAL DIVISION
File Number(s):2020/0330
Re:Juma Khan NAZARI
APPLICANT

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

DECISION
Tribunal:Senior Member Damien O'Donovan
Date:30 June 2021
Place:Canberra

The decision under review is affirmed.
.............................[sgd]...........................................
Senior Member Damien O'Donovan
Catchwords
IMMIGRATION & CITIZENSHIP – cancellation of approval to become Australian citizen –Applicant’s approval was cancelled under section 25 of the Australian Citizenship Act 2007 –– whether Applicant is not of good character – decision under review affirmed.
Legislation
Australian Citizenship Act 2007 (Cth) ss 21, 22, 24, 25.
Cases
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Secondary Materials
Australian Citizenship Policy, ch 11
Citizenship Procedural Instructions, 15
REASONS FOR DECISION
Senior Member Damien O'Donovan
30 June 2021

In the recently published historical novel The Mirror and the Light, the author gives an account of the heresy trial of John Lambert conducted personally by Henry VIII. Upon discovering that the subject of the trial was born with one name but goes by another the King declares ‘I would not trust a man with two names, even if he were my own brother.’[1] The mere fact of two identities was enough to cast doubt on his character. Similar issues arise for the applicant in these proceedings.
[1] Hilary Mantel, The Mirror and the Light (4th Estate, 2020).
In this matter, the Applicant frankly admits to having invented for himself a false identity in 2007. He did so in the hope of securing a visa which would allow him to come to Australia. Notwithstanding that he practiced that deception, on both the Australian Government and his Australian friends, he submits that I should not make a finding that he is not of good character and thus allow him to become an Australian citizen. The Applicant submits that the false identity he invented was a lapse of judgment made in desperate circumstances. He submits that his true character should be discerned having regard to how he has conducted himself through the course of his life, under his true identity which has, particularly since his final successful attempt to secure a visa to enter Australia, been above reproach – even admirable.
The Respondent, on the other hand, submits that I should approach the matter very differently. The Minister contends that in this matter I can be satisfied that the Applicant has adopted a secret identity, hidden it, lied about it to government officials and lied to the Tribunal about his life and his circumstances. Consequently, I cannot be sure of much, but I can be sure that the Applicant is not of good character.
While the Respondent’s analysis is expressed in terms which are harsher than necessary, the submissions he makes are consistent with the established facts. As is explained further below, the Applicant has been dishonest on many occasions in circumstances which do not justify it or explain it as the product of desperation. Accordingly, I am satisfied that he is not of good character. In circumstances where the Applicant’s dishonesty extends to dishonesty in his dealings with this Tribunal I am satisfied that the discretion should be exercised to cancel the approval of his citizenship application. On that basis I have decided that the decision under review should be affirmed.
ISSUES AND CONTEXT
The issue arises in the following context.
The Applicant first attempted to come to Australia in 2001 relying on people smugglers from Indonesia. The vessel on which he was travelling became stranded but its occupants were rescued by the MV Tampa. The Applicant was transferred to Nauru and after a long stay there travelled to Kabul, Afghanistan. In the following 9 years he made multiple attempts to obtain a visa to come to Australia.
In October 2012 the Applicant arrived in Australia holding a humanitarian visa. He applied for Australian Citizenship on 18 October 2016 under the name Juma Khan Nazari.
The Applicant’s citizenship application was considered in accordance with the eligibility criteria set out in section 21(2) of the Australian Citizenship Act 2007 (the Act) and his citizenship application was approved under section 24 on 23 March 2017. The Applicant was notified of that approval.
The Applicant was scheduled to attend an Australian citizenship ceremony on 6 June 2017 which, once he made a pledge of commitment, would have resulted in the Applicant becoming an Australian citizen. However, on 30 May 2017 the Respondent discovered evidence that the Applicant may have made a previous visa application under a different name. The Minister then took steps to prevent the Applicant from making a pledge of commitment.
Following further investigation, including a citizenship interview on 20 June 2017, the Minister’s delegate considered whether the Applicant’s approval under section 24 should be cancelled under section 25.
Section 25 relevantly provides as follows: [2]
[2] Australian Citizenship Act 2007 (Cth) s 25.
25 The minister may cancel approval
(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;
(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.
The delegate decided to cancel the approval of the Applicant’s application for conferral of Australian citizenship on the basis that the Applicant was not of good character.
The Applicant seeks review of that decision.

Issues
The first question to be determined is whether I am satisfied at this point in time that the Applicant is not of good character. If I am, then I need to consider whether the discretion to cancel the Applicant’s section 24 approval should be exercised.
Evidence
The evidence before the Tribunal consists of the following material:
a)T-Documents filed by the Respondent on 18 February 2021;
b)Supplementary T-Documents filed by the Respondent on 9 April 2020;
c)Statement of Ms Grace Gorman dated 3 May 2020, filed as Attachment A1 to the Applicant's Statement of Facts, Issues and Contentions (Exhibit A1);
d)Document described, ‘Application for Verification of Tazkira’ dated 16 March 2020, filed as Attachment A2 to the Applicant's Statement of Facts, Issues and Contentions (Exhibit A2);
e)NAATI Certified English translation of the Applicant's National Identity Verification Centre Verification Form (Tazkira) (Exhibit A2) dated 1 July 2020 (Exhibit A3);
f)Agreed Transcript of Interview dated 20 June 2017, filed on 2 July 2020 (Exhibit A4);
g)Document titled 'Continued From Page 21: Part D - Associated Family', filed by the Applicant on 8 July 2020 (Exhibit A5);
h)Family Law Act 1975 Divorce Order in the marriage between Juma Khan Nazari and Habiba Habiba dated 24 May 2016, filed by the Applicant on 8 July 2020 (Exhibit A6);
i)Wedding photos of Juma Nazari and Habiba Habiba, filed 20 July 2020 (Exhibit A7);
j)Applicant's Tazkira issued 7 July 2020, filed 21 July 2020 (Exhibit A8);
k)Tazkira Certification issued by the Afghan Embassy Canberra dated 7 July 2020, filed 21 July 2020 (Exhibit A9);
l)Document on letterhead of the Embassy of the Islamic Republic of Afghanistan, reference number 186, dated 28 August 2020 (Exhibit A10);
m)TAZKIRA (Afghani identity document) issued by Islamic Republic of Afghanistan and translation dated 4 August 2020 (Exhibit A11);
n)Photographs provided by Habiba Habiba under summons (Exhibit A12);
o)Paragraphs 1-22 of the Applicant’s statutory declaration filed on 12 October 2020 and the following annexures (Exhibit A13):
(i)The first four paragraphs of Annexure A2 up to the words ‘…student at that time’;
(ii)The first four paragraph of Annexure A3 up to the words ‘…he lives in Australia’; and
(iii)The first four paragraphs of Annexure A4 up to the words ‘…he lives in Australia’.
p)Respondent's Amended Statement of Facts, Issues and Contentions dated 17 July 2020 with attached extract showing amendments to the original SFIC (Exhibit R1);
q)Summons material filed by the Respondent excluding pages 267-273 and pages 456-458 except to the extent that within pages 456-458 the correspondence includes correspondence directed to the Department of Immigration (Exhibit R2);
r)Department of Home Affairs file of Habiba Habiba filed on 20 July 2020 (Exhibit T1);
s)Applicant's Tazkira (untranslated) issued in 2003 with day month and year marked, filed 22 July 2020 (Exhibit T2);
t)Translated Tazkira issued in 2003 with day, month and year marked, filed 22 July 2020 (Exhibit T3).
u)At the hearing, the Applicant gave oral evidence. The Tribunal also heard oral evidence from:
-    Mrs Elaine Smith.
-    Ms Melissa Merigan.
-    Mr Osman Wardak.
-    Ms Grace Gorman.
-    Ms Susan Lendon; and
-    Dr Geoffrey Smith.
Summary of Respondent’s submissions
As a result of the fact that the Applicant’s citizenship application was approved, the question for the Minister (and the Tribunal standing in his shoes) is whether the approval should be cancelled. To cancel,the Tribunal must first be positively satisfied that the Applicant is not of good character and then consider whether to exercise the discretion to cancel the approval.
The Respondent contends that while there is significant uncertainty about the Applicant’s life there are a number of significant matters which establish deliberate dishonesty on the part of the Applicant such that the Tribunal can be satisfied that he is not of good character. Those matters are as follows:
a)The Applicant applied for Humanitarian and Refugee visas in the past under two different identities – Mohammed Zahir Haidari (DOB February 1979) and Juma Khan Nazari (DOB October 1984). During his citizenship assurance interview conducted on 20 June 2017, the Applicant initially denied that he had made an application for a visa using the name Haidari but he eventually confessed that he had. He confirmed that he had provided a bogus Afghan passport in support of the visa application in the name of Haidari;
b)Notwithstanding that he was married at the relevant time, the Applicant failed to disclose that he was married or in a marriage-like relationship in any of his dealings with the Department concerning his humanitarian visa. On a number of occasions he positively misrepresented that he was never married including in forms signed immediately before his departure from Pakistan to take up residence in Australia on 3 October 2012. The Applicant provided incorrect information to the Department about the relationship in order to achieve a migration outcome for himself and his conduct is further evidence that the Applicant is not of good character;
c)The Applicant provided a bogus Tazkira (Afghani identity document) to the Department. The Applicant provided the Department with an Afghan Tazkira (no.659015) in the name of Juma Khan issued 29 July 2003. The Department was notified by the Afghanistan Central Civil Registration Authority (ACCRA) that ‘the mentioned Tazkira has not been issued by the Population Registration Department’;
d)The Applicant provided false and inconsistent information about his residency and status in Pakistan – in particular, the Applicant gave false information in his Citizenship Application which stated that he lived in Afghanistan from his birth until 8 May 2010 and in Pakistan from 8 May 2010 to 3 October 2012. In fact, the Applicant moved to live in Pakistan soon after he returned to Afghanistan in late 2003. The Applicant provided false information in his citizenship application and in his second, third and fourth visa applications;
e)The Applicant has provided false information about his education – in particular, the denials he made in a statutory declaration sworn 3 January 2020 that he had never undertaken any tertiary education in Pakistan and specifically that he had never attended the University of Balochistan, enrolled in a Masters Degree or attended the Technical Training Centre in Quetta, were false.[3]
[3] Exhibit R1.
The Respondent notes the Applicant’s work through his charitable foundation – the Nazari Foundation – demonstrates he has good qualities but these do not outweigh the Applicant’s consistent and serious dishonest dealings with the Department for the purposes of section 25(2)(b)(iii) of the Act.[4]
[4] Exhibit R1.
Summary of Applicant’s submissions
The Applicant contends that he is of good character. He concedes that he applied for a humanitarian visa in the name of Haidari but claims that his character should not be judged by his attempts to escape a desperate situation. The Applicant concedes that he initially denied to officials during his citizenship interview that he had applied for a visa under the name Haidari. However, he notes that he corrected his statements very shortly after and so his reaction in the interview is not evidence that he is not of good character. The Applicant contends that he has dealt honestly with the Department since 2011 and that the details in his successful application were true.
The Applicant accepts that he did sign a document which indicated that he was not married when he left Pakistan in 2012. He explains his failure to disclose his marriage as the product of circumstances and feeling that he had little choice but to sign the document and not cause trouble.[5] In those circumstances his failure to correct the document is not evidence that he is not of good character.
[5] Transcript of proceedings, 7 July 2020, 73.
The Applicant maintains that the Tazkira which he has provided is genuine.
The Applicant contends that to the extent that any information he provided in his citizenship application form was wrong, it was because he misunderstood what was being asked and struggled with English.[6]
[6] Transcript of proceedings, 9 July 2020, 156.
The Applicant contends that he did not provide false information about his formal education in his successful humanitarian visa application. He contends that his earlier claims about his education in previous applications were false and pre-dated his determination to deal honestly with the Australian government.
The Applicant contends that he is a man of good character who is a humanitarian who has worked hard for others. To the extent that he has provided false information in the past, he contends that it is not as extensive as the Respondent claims and it should be treated as understandable lapses rather than evidence establishing that he is not of good character.[7]
[7] Applicant’s Statement of Facts, Issues and Contentions, dated 4 May 2020.
Factual background
When considering the life of a refugee, the Tribunal is commonly confronted with a history given by an Applicant which is largely unverifiable. Countries disrupted by war and civil unrest are often something of a ‘black box’. What goes on inside them cannot be determined with any degree of confidence and there are few reliable sources of information. Difficulties in establishing the truth are compounded by the fact that refugees often have little or no documentation when they arrive at a destination. The absence of documentation can be explained either by the desperation of the circumstances in which they departed their home country or a deliberate decision to obscure their true circumstances by destroying documents. Choosing between these possibilities often has to be done on the basis of very imperfect information.
The problem of verification is further compounded by the ability of some refugees to obtain documents that appear to be official by the paying of a bribe or the purchase of a forgery. Consequently, when documentation is submitted to the Tribunal it is very difficult to know whether to rely on the documents or treat them with scepticism.
This case, however, is unusual because the Applicant struck up an email relationship with Australian refugee supporters and advocates when he first attempted to come to Australia in 2001. He maintained correspondence with those friends and supporters after he left Nauru and long after he arrived in Australia. The Tribunal obtained that correspondence by issuing summonses and so the Tribunal has quite a rich and detailed history of the Applicant’s movements, living conditions and thought processes against which to consider his claims. As this provides a rare, in-depth picture of the character of a refugee who has made multiple attempts to come to Australia, I have undertaken a detailed fact-finding exercise based on the material available to me. The summonsed material enables me to make findings about when the Applicant was being dishonest in his claims to the Department and in his evidence to the Tribunal with significantly more confidence than is usually the case.
I have treated his oral evidence with caution. The Applicant admits that he has been untruthful in the past and submitted applications for visas with false information in them, but asks me to accept that in these proceedings he has told the truth. However, some of what the applicant’s evidence was inconsistent with evidence from other sources which I am satisfied are reliable. As a consequence of this and in light of his admitted history of attempting to mislead Australian officials, I am not prepared to accept his oral evidence at face value. The emails which the Applicant sent to his Australian friends, in my assessment, provide a more accurate account of where the Applicant was and what he was doing at various times than the oral evidence given to the Tribunal. Where there is inconsistency between the applicant’s oral evidence and the content of emails, I have generally favoured what is disclosed in the emails.
The exception to this principle comes in the period when the Applicant sought to actively deceive his friends in order to assume a false identity for immigration purposes. The Applicant now admits that he was seeking to practice deception in that period[8] and so I am satisfied that the relevant emails which explain how he came to be known as Haidari are simply made up.
[8] Transcript of proceedings, 23 September 2020, 454-455.
In relation to the oral evidence given by his Australian friends I am satisfied that they were trying to give an accurate account of what they saw and were told. They were however dependent on the Applicant’s own reporting as to his circumstances back in Pakistan and Afghanistan. Consequently much of what they attested to was hearsay and was of little assistance in resolving the more controversial aspects of the Applicant’s claims.
As the Applicant has given multiple versions of his life story, it has not always been possible for me to reach positive satisfaction about what the Applicant was doing at certain points in his life. I have, however, endeavoured to be clear when I make a positive finding of fact and I have referenced the evidence on which my finding are based.
Early life

The Applicant has given a number of different versions of his early life. One version is that he was born Mohammad Zahir Haidari in February 1979 in Jaghori Ghazni in Afghanistan.[9] His parents were Moheeb Ali and Nekbakht and he had one brother and one sister.[10] He moved to Pakistan in January 2001.[11] The Applicant accepts that this account of his early life is entirely false.[12]
[9] T-Documents, T42, folio 373.
[10] T-Documents, T42, folio 378.
[11] T-Documents, T42, folio 373.
[12] Exhibit A4, 28; Transcript of Proceedings, 9 September 2020, 164.
Another version the Applicant has given is that he was born Juma Khan Nazari in October 1984 in Jaghori, Afghanistan.[13] His parents were Barat Ali Nazari and Tajwar Nazari. He had four older brothers, one older sister and two younger sisters. This family structure and date of birth is reflected in three of the four visa applications he made. It is largely reflected in his Citizenship Application as well. The Applicant contends that this description of his family and birthplace is true.
[13] T-Documents, T45, folios 425-489.
In a letter to Susan Lendon dated 3 March 2003, a refugee supporter whom the Applicant corresponded with, the Applicant described a family structure involving a younger sister who at that time was 14 years old and three younger brothers aged 12, 10 and six, and an older brother in Turkey. The Applicant submits that what he told Ms Lendon was the truth but should not be taken at face value.[14]
[14] Statutory Declaration of the Applicant dated 12 October 2020.
In his Citizenship Application the Applicant claims to have lived in Afghanistan from birth until 8 May 2010.[15] The Applicant now concedes that is not the case.
[15] T-Documents, T4, folio 155.
In his oral evidence the Applicant claims to have lived in Afghanistan until he left for the first time in 1998 for about 6 months when he moved to Quetta, after which he returned to Afghanistan.[16] He left again for Pakistan in January 2001. He was in Pakistan for about a week and then he left for Indonesia in 2001.[17]
[16] Transcript of proceedings, 7 July 2020, 42.
[17] Transcript of proceedings, 7 July 2020, 42.
The Applicant has offered explanations for a number of these inconsistencies.[18]
[18] Transcript of proceedings, 8 July 2020, 105.
Given the variation in descriptions of the Applicant’s immediate family and his locations from birth, I am not in a position to make any affirmative findings about the Applicant’s early life. While it seems likely that he was born in Afghanistan and moved later to Pakistan it is not impossible that he was born and raised in Quetta, Pakistan. As the Applicant described it to one of his refugee supporters, there are three kinds of refugees in the Hazara community (of which the Applicant is a member) in Pakistan:[19]
Those who migrated during the kingdom of a Pashtoon cruel king Abdurrahman who slaughtered and pushed almost 60% of Hazara population from Afghanistan in 1890…and those who have migrated before left wing coup in 27 April 1978. All these migrants and their children are Pakistani citizen now. They have all citizen rights and are considered local citizen. But some of them still think that they are refugees though they have original documents of citizenship
Those who migrated after the left-wing coup 1978. …These types of refugees are not in bad condition of living. A large majority of them have their own homes and suitable business/jobs. Some of them can be in financial trouble.
Those who have migrated after the defeat of left-wing government in 1992 and especially during the Taliban brutal regime. Some of them are in bad condition of living. They don’t have their own homes and suitable business/jobs. They live in hired houses. Majority of them have gone back to their homes after the defeat of the Taliban.
[19] Exhibit R2, SM6, 160.
The Applicant commented in relation to returnees from Nauru to Afghanistan (of which he is one): [20]
I know almost all returnees who live in Quetta now. Of course, all of them have their families with them and belong to first and second categories.
[20] Exhibit R2, SM6, 160.
There is no consistent pattern about the Applicant’s early life which emerges from the evidence other than that the Applicant gives inconsistent accounts of his family structure, date of birth and movements up to 2001. In those circumstances I am not prepared to make any definitive findings about the Applicant’s early life, where it was spent and whether it involved hardship or not. Consequently, I am unable to make any definitive findings about what the Applicant’s early life consisted of. I am however satisfied that the Applicant has given inconsistent accounts of that part of his life to friends and to the Australian government. Not all of the accounts can be true.
Movements from 2001
In what I will describe as his first visa application, the Applicant claimed that he was living in Kabul, Afghanistan immediately prior to his departure for Quetta, Pakistan in January 2001.[21] The Applicant now accepts that information was false.[22]
[21] T-Documents, T42, folio 383.
[22] Transcript of proceedings, 7 July 2020, 53.
In his oral evidence the Applicant explained that in 2001 when he was 17, he left Afghanistan because the Taliban had taken over.[23] With the assistance of people smugglers, he went first to Pakistan for about a week and then to Jakarta, Indonesia.[24] I accept that the Applicant left for Indonesia from Pakistan, but make no affirmative finding about where he was living prior to that.
[23] Transcript of proceedings, 8 July 2020, 129.
[24] Transcript of proceedings, 8 July 2020, 130.
I am satisfied that the Applicant did arrive in Jakarta early in 2001. He lived there for about six months staying in a hotel using money arranged by his family. The hotel cost was covered by the International Organization for Migration.[25] While in Indonesia the Applicant had four failed attempts to reach Australia.[26] His final attempt saw him board an undersized fishing vessel with 437 other asylum seekers on 23 August 2001.[27] The engine of the boat failed 24 hours later, and the vessel began to take on water. The boat drifted for almost three days before being rescued by the Norwegian freighter, the Tampa. As is well known, the Australian government refused to let the Tampa enter any Australian port and ultimately the asylum seekers were transferred to an Australian Navy vessel the Manoora and moved to Nauru.
[25] Transcript of proceedings, 8 July 2020, 122.
[26] Transcript of proceedings, 7 July 2020, 24.
[27] T-Documents, T47, folio 495.
The Applicant remained on Nauru for almost two years. In his time on Nauru, the Applicant, who could speak and write well in English, helped others by translating documents for them and teaching English.[28] While on Nauru the Applicant began corresponding with a number of Australians who wanted to show their support for refugees and assist them while they were living on Nauru. These included Elaine and Geoff Smith, and Susan Lendon.
[28] T-Documents, T 60, folio 594.
In late August 2003 the Applicant agreed to return to Afghanistan. He was initially returned to Kabul. The documentary evidence indicates that he stayed on in Kabul until at least November 2003,[29] and probably until late December, where he lived in the Ministry of Refugees and Repatriation guest house and undertook study at the Peace and Rehabilitation Association Center in Kabul.[30] I am satisfied that this is the case. However, the Applicant claimed in oral evidence that he left Kabul soon after his return and went back to Ghazni Province in September 2003. This is significant because the Applicant claims that he obtained his identity document (the Tazkira) personally in Ghazni.[31] There are significant reasons to doubt this claim. The identity document in fact bears the date 29 July 2003,[32] which is a date when the Applicant was still on Nauru. However, the Applicant has an explanation. He says that the date has been transposed on the document and that the document was in fact issued in late September 2003 by which time he had made his way to Ghazni.[33] While I have significant doubts about this version of events I am prepared to accept that the Tazkira is genuine and was issued in the circumstances the Applicant described.[34]
[29] T-Documents, T13, folio 192 and T47, folio 496.
[30] T-Documents, T47, folio 496.
[31] Transcript of proceedings, 21 July 2020, 208-9.
[32] Transcript of proceedings, 22 July 2020, 268.
[33] Transcript of proceedings, 7 July 2020, 27.
[34] Transcript of proceedings, 23 September 2020, 485.
By January 2004 the Applicant was in Quetta, Pakistan.
Although the Applicant now denies it,[35] I am satisfied that on his return to Quetta the Applicant enrolled in at the University of Balochistan in Quetta. There he undertook a Bachelor of Arts studying English, Islamic Education, Pakistan Studies, Political Science, History and Persian. This is confirmed by documents attached to the Applicant’s second visa application submitted on 30 June 2010 which include the degree itself as well as an academic transcript.[36] Inquiries with the Department of Foreign Affairs and Trade made by the Department of Home Affairs have confirmed that the University of Balochistan records list him as enrolled.[37] If there were any doubt about the veracity of the documents, it is eliminated when reference is made to the contemporaneous emails which the Applicant was exchanging with his friends Geoff and Elaine Smith (the Smiths). The emails describe him studying and sitting exams. They also record results which correspond exactly to the academic transcript which the Applicant subsequently submitted as part of his second visa application several years later[38] - a document which the Applicant now claims is fake.[39] It is worth noting at this point that the reason it has become important for the Applicant to deny any higher education at the University of Balochistan is that in his successful visa application he denied having any higher education or trade qualifications. Central to his claim of good character is that although he lied on previous visa applications, he has been truthful with Australian officials since 2010 and has been truthful with the Tribunal. Given that the Applicant has specifically denied any higher education qualifications both in his successful visa application and in his evidence before the Tribunal this finding that he continues to lie about his level of higher education is extremely damaging to his claims to be of good character.
[35] Transcript of proceedings, 9 September 2020, 142.
[36] T-Documents, T 45, folio 482-483.
[37] T-Documents, T2, folio 23.
[38] Exhibit R2, SM2, 30 and SM3, 74.
[39] Transcript of proceedings, 23 September 2020, 476.
Despite working hard at his studies, the Applicant was disappointed with the results he achieved, but they were sufficient to allow him to study a Master’s Degree at the same university.[40] When the Applicant was not studying at university in 2006 he was learning a trade. Emails with the Smiths confirm that he was learning panel beating in a workshop in Quetta.[41] In 2007 he stopped attending his panel beating course and began learning automotive electrics in a training centre.[42]
[40] Exhibit R2, SM3, 74.
[41] Exhibit R2, SM2, 32.
[42] Exhibit R2, SM8, 253.
At this time the Smiths were hoping to obtain information about Nauru returnees whose children were unsafe and excluded from education. The Applicant however reported that he could not find anyone in need. He found the returnees’ children reading in local schools. He explained that none of the returnees would allow him to take pictures of their children because: ‘they would be afraid that I may explain and write their true situation and status.’[43]
[43] Exhibit R2, SM6, 160-161.
To his credit, at this point, the Applicant appeared very resistant to Australian reporters being provided with misinformation about the living conditions of returnees from Nauru. When asked to co-operate with obtaining stories the Applicant replied:
…there is an idiom in Persian that “Fact is bitter”. I know who is in what condition here. I can only be interpreter if any journalist or researcher come to Pakistan and visit returnees and will help them in some cases. But I think it would not be good if I interfere in anyone’s personal matters. It is better if any Australian journalist or researcher do all these things because they would explain and write whatever they see and hear at that moment. In spite of understanding the real situation, if I explain and write wrong things I would be consciously foolish, treacherous and liar. And if I explain and write truly about returnees living here it would damage other refugees’ rights who really deserve refugee status and need protection.[44]
[44] Exhibit R2, SM6, 160.
This period of candour however appears to be short-lived. In 2006 the Applicant began to correspond with the Smiths about his brother who he indicated had been granted a visa and was likely to arrive in Australia by August of that year.[45] There were however delays and the person the Applicant claimed was his brother was still in Quetta in October 2006.[46] By the end of that month the Applicant advised the Smiths that his brother and his family had arrived in Adelaide and would sponsor the Applicant for a visa to Australia and that he was going to talk to the UNHCR about his claims.[47]
[45] Exhibit R2, SM7, 208.
[46] Exhibit R2, SM7, 210.
[47] Exhibit R2, SM7, 212.
The Applicant persuaded the Smiths that his brother had arrived in Adelaide and that they should meet him and his family although the meeting would be difficult as his brother spoke little English.[48]
[48] Exhibit R2, SM2, 37; Exhibit R2, SM5, 129.
From this point on the Applicant set out to deceive the Smiths as to the relationship that he had with the man who had arrived in Adelaide (to whom he now admits was not related),[49] and similarly, deceive the Australian Government and the UNHCR. It is important to note that this deception commenced at a point in time where the Applicant was not reporting any kind of persecution to the Smiths. On the contrary, he was studying for a degree, enrolled in a Pakistani university and undertaking trade courses.
[49] Transcript of proceedings, 23 September 2020, 427.
The extent to which the Applicant was engaging in behaviour calculated to deceive is made clear in the email correspondence. The following examples show how the Applicant chose to tailor his story to the one he considered would be most advantageous to him. He decided to deliberately deceive his friends as to his true name and true identity, and fully adopt the identity of a person called Mohammad Zahir Haidari: [50]
UNHCR has not called me yet for interview. I know that if i tell them that i have been in Nauru and Jakarta my application will be rejected. I faced the same problem in my case in Nauru because i had mentioned my Jakarta case there. One of my friend also advised me from NZ to not mention my Nauru and Jakarta cases in my interveiw anywhere i claim for asylum. He told me thatone of his friends who had been in Nauru, had applied for visit visa to Australia but his application was rejected because he was one of the Tampa refugee group. So DIMIA will nver accept my application if i tell them that i have been in Nauru. Therefor i always avoid of telling it in my case. I also was misguided in my first interview in Nauru. I had committed some mistakes in my interviews with UNHCR. I had hide some true events. any how this time i have to be very carefull in my case. It is very good that i have no record in DIMIA because my case had been dealing by UNHCR and IOM was involved in other arrangements but DIMIA was not involved in the matters of Tampa group.[51]
[50] Exhibit R2, SM5, 129.
[51] The errors in this email, and the emails replicated below, appear in the original.
And in a later email: [52]
‘Juma Khan Nazari … is an adopted name by myself especially for educational reason after migration to Pakistan almost ten years ago. If i had not changed my name i would have never been able to study in Pakistan.
[52] Exhibit R2, SM1, 18.
And later again:[53]
My current name can not be used in my application. My original name ‘Mohammad Zahir Haidari’ given at my birth will be used because my brother has used it in his family composition form. The same name is recorded in school in Afghanistan. Please remember it. I have to entirely avoid of mentioning Nauru and Jakarta cases. It should be totally forgoten in my new case becuase it will damage my case if I mention it. Please remember it too. It should seem as if i have not been in Nauru and Jakarta. I submitted extra application to UNHCR to remind them of my previous application…If you get chance to go to Adelaide please meet my brother in his family there. His name is Mohammad Rahim…
[53] Exhibit R2, SM2, 40.
And again: [54]
If it is impossible under such indentity I have two options: 1 – If i fill the application under my current name I have to avoid of using my brother’s documents and idetity (means I should not tell that I have a brother in Australia). Then i would never be able to use his Australian identities and documents anywhere 2- If i fill the application under the name recorded by DIMIA in family form of my brother I should avoid of telling that I have been in Nauru. And i am sure that Nauru case will damage my application in both cases if it is mentioned.
[54] Exhibit R2, SM5, 132.
The Smiths were clearly anxious about the deceptive strategy adopted by the Applicant and wrote to him about it: [55]
Dear Mohammad, or do I call you Zahir?... Do you have to keep all these things secret, because if you come to australia you will meet many people who know you. I think immigration can find out about you. …I cannot think how this will be a success. Is it possible for you to make a life in Pakistan? because I am worried about this.
[55] Exhibit R2, SM2, 40.
In response the Applicant explained his situation in Pakistan: [56]
You might know about my situation and documents in Pakistan. I must leave Pakistan at the end of 2009. My all documents will expire and i would never be able to get new ones because all are dodgy documents. I will have only the original educational documents with me after that date. So i will not have any legal rights to live in Pakistan.
[56] Exhibit R2, SM5, 134.
The Applicant elaborated on this position soon after: [57]
I changed my name in 1992 during the first time migration to Pakistan. The basic reason was my educational purpose. “Juma Khan” was the name of a child who had died. His brother who knew my father well and had migrated from Afghanistan before 1979 adopted me in place of his brother. As my elder brother he became my guardian on papers and got a Pakistani primary school certificate for me. So I got admission in school under this name. When I got problems with my documents for university admission in 1999 he advised me to return Afghanistan and continue my higher education in Kabul University. He gave the copy of his Afghan National Identity Card which was needed for me to get Afghan NIC for university admission because I had to use my intermediate certificate. Afghan universities easily accepted Pakistani educational certificates at that time because Pakistan’s puppet Taliban was in the government at that time. It is still acceptable by Afghan universities and the Ministry for Higher Education but under some strict process. Unfortunately I could not continue my education there because of deteriorating security situation.
I followed the same name in my interview because I had some political documents by this name and I thought they might have positive effects in my case. I am known by this name in PK…In Afghanistan no one knows me by this name…In Afghanistan I am still known by M.Z. This difference has been very useful for my security.
You might remember that I got problem when I applied for passport while I was in Nauru. I got passport when the letter of Interior Ministry about my identity received by Embassy.
I am glad to make my identity clear as much as you want. You may not know about Afghans and their authority management and systems as much I know and the same case is with me about Australians and their authority system.
And I am sure you know that the Afghan Authority system was entirely paralysed from 1979-2001 especially in the rural areas. No ones identity has been registered during this time. Millions of people live without any National Identity Card. Afghan authorities have don’t have any objection when they issue NIC to people. They only see the previous records of ones father/forefather.
There isn’t any difficulty for me to get Afghan Identity documents (NIC, passport, etc.) by any of my names if I return. I should use J.K for the use of my educational certificates in Afghanistan. Otherwise M.Z is OK.
I can not use my educational documents in my application now because I don’t have any legal prove of my study which shows that I study in Pakistan as an Afghan student. If I tell the truth it will not be accepted by any authorities except Afghan authority. My educational certificate will be accepted by other countries when I get registered it in the Ministry of Higher Education in Kabul. Then I can use it for any purpose abroad.
[57] Exhibit R2, SM5, 134-135.

While there are likely to be some elements of truth in this email, the opening in particular is an attempt by the Applicant to persuade the Smiths that Juma Khan is not his real name and that Haidari is his true name. I am satisfied that the Applicant’s name is not Mohammed Zahir Haidari and never was. The Applicant accepts that is the case.[58]
[58] Transcript of proceedings, 23 September 2020, 423.
The email also confirms that whatever identity the Applicant chooses, he will be able to obtain documents which support that identity. There were however clearly competing imperatives for the Applicant in choosing an identity.
The Applicant set out this dilemma for the Smiths: [59]
I have decided to hide Nauru case because I am sure if I tell it will damage my new case, especially if I fill my application with reference of my brother identity… Mum, I have thought about this problem seriously. Now I have only two options:
1- Use my old name “Zahir” and involve my brother in my application. And entirely avoid of telling Nauru case.
2- Use my current name “Juma” and avoid of telling my brother in my application. He should not be my brother on paper.
If I go with first option, I would not be able of using my educational degrees onward. If my application for humanitarian visa is rejected I would never be able to apply for student visa to Australia in future…If my application for humanitarian visa is rejected I will have more ways in future – 1. Student visa. 2. Job visa. So in these cases my brother would be able to be one of my supporters in my applications as my relative/friend but not as brother…I have learned 50% of panel beating and am improving… A person who applies for study in Australia must have at least AU$55000 bank credit account in his/her country or someone should insure him in the country where he goes for study…I would be able to apply for student visa in mid 2009 because I could not score a good mark in BA exam. I am sure I will gain a good result in MA exam and would be eligible to apply for PhD or double MA degree. I will get Master Degree in June 2009. I can stay in Pakistan till the end of 2009.
[59] Exhibit R2, SM5, 141.
As became clear at the hearing of this matter, the man the Applicant is claiming is his brother is not related to the Applicant in any way. Accordingly, this correspondence involves deceiving the Smiths and demonstrates a calculated willingness to deceive on the part of the Applicant. This deception is not practiced because of any desperate situation faced by the Applicant, he is after all engaged in higher education in Quetta, but because he is trying to give himself the best chance of making it to Australia.
For the next year the Applicant continued with his studies and skill learning.[60] In this time he enjoyed the financial support of the Smiths who provided him with enough money to live and pursue higher education and trade skills.[61] He also obtained the services of an Australian migration agent to assist him to obtain a visa which would allow him to live in Australia. The Applicant continued to re-iterate his strategy for obtaining a visa to the Smiths: [62]
‘…i will hide Nauru and Indonesia cases…If i mention that I have been working and learning skill in Pakistan it will damage my claim. So I should fix my skills to different dates and location…I can not tell my real educational qualification because I have studied high education by different name. So if I tell about it will be considered illegal and will damage my claim. Therefore I will only mention my High school education…’ (emphasis added).
[60] Exhibit R2, SM8, 255.
[61] Exhibit R2, SM2, 35; Transcript of proceedings, 9 July 2020, 137.
[62] Exhibit R2, SM2, 34.
This email shows how calculating the Applicant is in deciding what information he will include in his application.
In around June 2007 the Applicant started to mention Christianity as an issue for him. He had raised that topic with one of the other people he commenced correspondence with on Nauru (Susan Lendon) but prior to mid-2007 he had never raised it with the Smiths as an interest or likely source of persecution. He described his conversion to Christianity in the following terms: [63]
In spite of being accused of Socialist activist and Christian as well, I never accepted the accusation of Christianity because it was not true at that time. I was only a Socialist activist… For the last one year I have been discussing with a priest at his home. He is also worried about my security. He advises me not to attend any Church in Pakistan because two people who were converted to Christianity were killed by Islamist some years ago. I follow his advice.
And:[64]
‘I am not baptised yet. My security is the main problem here in Quetta too…The bishop will baptize me there [Karachi)… if the people know that i have been baptized i would not be able to stay in Quetta too. At the first week of July a priest had come from Singapore. He asked me for baptism but I did not agree because of my security matter…I am on summer leave from university for two weeks. The skill training is going on.
And: [65]
The bishop of Karachi diocese baptised me formally. There were some Church ministries and priests at the time of baptism. I stayed with them for 5 days. They had a long time inquiry about me because they had been afraid of my Muslim background and any possible link to Taliban and other terrorist groups…I was introduced to them by Church Missionary Society of Australia last year by the help of my friend Susan Lendon. Now I have got back to my study and training.
[63] Exhibit R2, SM2, 34.
[64] Exhibit R2, SM2, 42-43.
[65] Exhibit R2, SM8, 261.
Two weeks before he was baptized a Christian, the Applicant submitted an application for an Offshore Humanitarian Visa. The Applicant signed the form which included a declaration that ‘the information I have supplied on and with this form is complete, correct and up-to-date in every detail’. [66] It was none of those things.
[66] T-Documents, T42, folio 393.
There is no dispute that the information included in that application was false. The false information included:
a)The name Mohammad Zahir Haidari;
b)The Applicant’s date of birth;
c)The date the Applicant arrived in Pakistan;
d)The names of his parents;
e)The names of his brothers and sisters;
f)The dates and addresses where he lived;
g)His employment history;
h)The Afghani passport he submitted, which was a forgery.
At this time the Applicant was living safely in Quetta. He was studying for a higher degree and was learning trade skills. While I accept that the Applicant had converted to Christianity he did so after he had hatched his plan to adopt a false identity. There were no immediate risks that justified the wholesale dishonesty of the application. The Applicant accepts that the application was opportunistic and there was no justification at all for not making the application in his true name and true personal history based on whatever concerns he had at the time. [67]
[67] Transcript of proceedings, 9 July 2020, 146.
This application was rejected very quickly.
The Applicant then wrote to the Smiths in the following terms in December 2007:[68]
Embassy has rejected my claim for humanitarian visa. … Now i wish to follow my previous name and details. I have decided to completely give up the reference of my brother because this reference will damage my educational and skill certificates ahead. I have a formal certificate of my conversion to Christianity from Church of Pakistan too. I could not use it and my educational documents in my humanitarian visa application. If you discuss with anyone about me please follow my previous details. though I have used both name in my application but don’t want to follow it any more. My application failed. I will be always known by the name “Juma Khan Nazari”. You can mention my name in your letter to minister and anyone else. I could not go to Church on Christmas because the Church committee is worry about my security in Quetta.
[68] Exhibit R2, SM3, 87.
It was not until years later that the Applicant formally admitted that he had never been known by the name Haidari except for the purposes of that visa application.[69]
[69] T-Documents, T20, folio 226.
Following the rejection of his application I am satisfied that the Applicant continued to live in Quetta for the next two years. He had documentation which allowed him to attend University and study a Master’s degree.[70] He was financially supported by the Smiths who were sending him $100 every fortnight.[71] As the Smiths described it in an email ‘You seem to have options for the future and your study is going well.’[72]
[70] Exhibit R2, SM2, 52.
[71] T-Documents, T45 folio 456-461.
[72] Exhibit R2, SM2, 51.
Problems however developed for the Applicant because of work the Smiths were doing on behalf of other Nauru returnees.
At the relevant time the Smith’s were making submissions to the Minister asserting that their contacts who had been returned from Nauru were now in Pakistan leading a ‘dangerous and pitiful life…They are subject to danger because they are Hazara, illegal refugees and Shia religion.’[73]
[73] Exhibit R2, SM8, 271.
That did not accurately describe the Applicant’s situation nor did it tally with his description of other returnees’ situations set out at paragraph ‎38 above but there may have been elements of truth to it.
Regrettably the actions of the Smiths appear to have given false hope to returnees living in Quetta about the significance of a change in the Australian Government following the 2007 election and this created problems for the Applicant. In an email dated 19 March 2008 to the Smiths the Applicant reported as follows:
I am trying my best to explain the true situations for everyone who contact me. I have told others not to be very hopeful from New government. I talked to Hassan Reza and explained the situation few weeks ago before he had contacted you. I am worry that why he has written such letter and expressed to much anger. He should not have written such disappointed letter.
Mum, it is difficult to make every body understand. Everyone has different views. You might remember that I sent you some informations about refugee schools in Quetta two years ago. I was threaten by two of my Nauru friends on phone after passing that informations. they told me that if i continue passing such informations and interfear in the matters they will hand me to secret police agents. I found one of them by his phone number. I have forgiven them. Jesus teaches me forgiveness. The current tension came out from a PCO shop. The owner of the shop has told returnees that he has talked to you and you have told him that every Nauru returnees must fill form 842 and send it to you/embassy. Is it correct? This issue has made the returnees very hopeful. I think he is doing this only for his business purpose because he can earn big amount from it. I don’t know who has guided him to do so. He was not in Nauru.[74]
[74] Exhibit R2, SM8, 277.
Notwithstanding these tensions, the Applicant’s relationship with the Smiths persisted.
By early 2008 the Applicant was busy studying his master’s degree and was hopeful of getting a good job when he finished his studies in mid-2009.[75]
[75] Exhibit R2, SM8, 278.
By the start of 2009 it appears that the security situation in Quetta deteriorated. The Applicant had also taken steps with his sisters to start up the Nazari Foundation which was a charity which targeted women’s health and education which was supported by the Applicant’s friends in Australia.[76]
[76] Exhibit R2, SM2, 64.
He returned to Afghanistan in March 2009 for the first time since the end of 2003.[77] Between March 2009 and May 2009 the Applicant was reporting activities in Afghanistan supporting the education of girls. He returned to Pakistan in May 2009 to sit his final exams for his Master’s degree.[78] He remained in Quetta until July 2009.[79]
[77] Exhibit R2, SM3, 112.
[78] Exhibit R2, SM7, 233.
[79] Exhibit R2, SM3, 90.
Between August 2009 and December 2009, the Applicant was reporting that he was in Afghanistan doing work for the Nazari Foundation. This involved some conflict with the Taliban and the abandoning of programs in Uruzgan province.[80]
[80] Exhibit R2, SM7, 238.
On 14 December 2009 the Applicant returned to Quetta in Pakistan.[81] At Christmas he indicated to the Smiths that he would be returning to Afghanistan and that ‘there is not any serious problem with me in Afghanistan’.[82]
[81] Exhibit R2, SM8, 283.
[82] Exhibit R2, SM8, 286.
He remained in Pakistan until February 2010. He advised the Smiths that he was planning to leave Pakistan because he had done some work with Korean Christian Missionaries and was concerned secret government agencies would act against him. He left Pakistan in late February 2010.[83]
[83] Exhibit R2, SM11, 360.
The Applicant reported undertaking further work for the Nazari Foundation in the months that followed in Afghanistan.
Then in April 2010, the Applicant was kidnapped and a ransom paid for his release. The correspondence from the kidnappers does not make it entirely clear why they kidnapped the Applicant. The Applicant believes it had to do with his activities with Korean Christian Missionaries. A partial ransom was paid and following his release the Applicant returned to Quetta in May 2010.[84]
[84] Exhibit R2, SM11, 369.
On 25 June 2010 the Applicant reported that he was ‘living intirely [sic] secret and hide myself from the eyes of people so it is difficult for me to go and get my documents, certified copies and get translations…I am in great danger and high level fear’.[85] He indicated that he had made contact with UNHCR and that the level of danger was increasing for him. He advised that ‘I go out some time but with in limits just near by where I live. I can go to the shop and walk in the street.’[86]
[85] Exhibit R2, SM11, 519.
[86] Exhibit R2, SM11, 520.
On 30 June 2010 the Applicant applied for an Offshore Humanitarian Visa.
This application appears to be the frankest that the Applicant was with Australian authorities about his circumstances. He applied under his real name, Juma Khan Nazari and used his correct date of birth. He relied on his activities as a Christian in Afghanistan and his subsequent kidnapping as the basis for his protection claims. The Applicant listed in the application a family structure which he has consistently claimed ever since. He disclosed that he adopted Nazari as his family name on route to Nauru while on the HMAS Manoora. He disclosed his university studies. He accurately described his whereabouts from 2001 to 2008 including disclosing his time on Nauru.
There were minor errors in the form. For example, he indicated that he left Pakistan earlier than he in fact did, and he repeated the claim that he left Pakistan in mid-2008 in his interview with the UN.[87] I am satisfied this was an honest mistake.
[87] T-Documents, T47, folio 496.
He disclosed that he was a student in Pakistan between 2004 and 2008 and that he had a Bachelor of Arts and an Auto Electric Trade Certificate.
However, when he was interviewed by the UN the Applicant changed his story and suggested that he studied English and computer classes and remained an active Marxist in this period.[88]
[88] T-Documents, T47, folio 496.
The application was rejected on 5 November 2010.[89]
[89] T-Documents, T48, 507-508.
How the Applicant spent the first part of 2011 is unclear, but it seems likely that he remained living in Quetta. He advised the Smiths in July 2011 that he was not doing any work with churches in Pakistan because of the security situation. He was however teaching Dari language to a Korean missionary family to earn money for daily expenses and he recently started to learn some more English in a language centre nearby.
In October 2011 the Applicant applied again for an Offshore Humanitarian Visa. This application was made under the name Juma Khan Nazari with a 1984 date of birth, outlining the same family structure which he gave in his previous application. The Applicant also listed himself as the holder of a Bachelor of Arts and the holder of an Auto Electric Trade Certificate. The only obvious inconsistency with the known facts was the date he claimed to leave Pakistan in 2008.
That application was refused in November 2011; however, the refusal was set aside by consent in the Federal Magistrates Court on 7 February 2012. The application was ultimately withdrawn on 27 June 2012 because a subsequent application by the Applicant was successful.
On 23 November 2011 the Applicant commenced a further application for an Offshore Humanitarian Visa.[90] The application reflected the name and date of birth of the previous two applications which the Applicant had submitted but there were other differences. The Applicant listed himself as ‘unemployed’ between 2004 and 2008 and listed his only post-secondary education as being undertaken between March 1998 and November 2000. He signed the form on 30 November 2011 which declared that the information he supplied was complete correct and up to date and included an undertaking to inform the Australian Government of any material changes to his circumstances before he was immigration cleared.[91] He identified himself on the form as ‘never married’.[92]
[90] T-Documents, T50, folio 510-535.
[91] T-Documents, T50, folio 534.
[92] T-Documents, T50, folio 517.
I am satisfied that the Applicant included deliberately false information in this application. I am satisfied that the Applicant had undertaken higher education between 2004 and 2008 as described in paragraph ‎47 above. I am satisfied that the Applicant’s highest level of educational attainment was a bachelor’s degree from the University of Balochistan.
On 12 December 2011, the Applicant was interviewed in the Australian High Commission in Islamabad which was considering the grant of a Subclass 200 offshore refugee visa. He was interviewed by an Australian Consulate official from Dubai. An interpreter was present. The Applicant was warned that all of his answers needed to be clear and truthful as it may affect his application if this were not the case. The Applicant gave an account of his involvement with Marxism and his conversion to Christianity which is broadly consistent with other material I have available to me and his claims of persecution on the basis of his Christianity were accepted as credible by the interviewer.
There was some delay then in the determination of the application.
In the meantime the Applicant returned to Quetta and got married. According to the marriage certificate submitted by his wife in her application for an Offshore Humanitarian visa the wedding took place on 18 February 2012.[93] According to the Applicant’s wife, a second ceremony was held on 17 March 2012.[94]
[93] T-Documents, T68, folios 643-646.
[94] T-Documents, T2, folio 25; Exhibit T1, folio 106.
The Applicant claimed in a document supporting his wife’s application that:
I married her on 18 February 2012…and we started living together at her parents’ home but soon her parents got to know about me, and my religious belief was exposed to them. I found the situation against me. We both decided to leave her parents’ home. Unfortunately we could not manage to escape and I was threatened not to get close to Habiba…I was living in Quetta secretly due to the fear I had got in Afghanistan….After I had been threatened by my in-law family I went into more hiding situation in order to protect myself…I avoided of putting an application for Habiba to travel with me while my application was in process because her family would have tortured Habiba if they had known that Habiba was trying to travel with me. We both decided that she would get her passport and would escape from Pakistan but her family did not let her to get passport. The future of our relationship went into complete doubt. Therefore I could not inform the Department of Immigration.[95]
[95] T-Documents, T70, folio 649.

None of this material about the Applicant’s wedding came to light until the middle of 2013 when Habiba applied for a Humanitarian visa.
Since then pictures of the wedding have been produced. The wedding involved a gathering of at least 10 people in a traditional Muslim wedding.
There are however reasons to doubt that the marriage took place as the Applicant and his wife subsequently described.
Through February 2012 the Applicant and the Smiths were exchanging emails. On 12 February 2012, Elaine Smith wrote to the Department of Immigration describing how she understood the Applicant was living. Her description is in the following terms: [96]
Juma is without protection, living, isolated in a room. He has only one person who is courageous enough to hide him. He is in great danger.
[96] Exhibit R2, SM11, 390.
Nothing in that suggests that the Smiths are aware of an impending marriage.
The first mention of marriage in the correspondence is four days after the ceremony is now said to have taken place. It is in the following terms: [97]
…I am busy how to manage my engagement program. I feel fear from public meetings here. So I am discussing my fiancé how to manage it. We are going to invite very small number of people means very close friends and family. My mother, my sister and rest of the family are not going to participate in the party. The date has not been fixed yet. You are invited to come to my engagement party. My fiancé is managing our project to assist refugee students here in Pakistan in coming weeks.’
[emphasis added]
[97] Exhibit R2, SM11, 423.
On 25 May 2012 the Applicant wrote an email to the Smiths referring to Habiba as his fiancé.[98]
[98] Exhibit R2, SM11, 431.
On 30 May 2012 the Applicant sent through photos which he described as ‘engagement photos…they are private and should not be forwarded to others’.[99] Elaine Smith responded by enquiring whether the Applicant had told the Immigration Department.[100] She also asked the Applicant: [101]
‘When you say engagement is it the same as marriage? Do you have a wedding certificate or equivalent?’
[99] Exhibit R2, SM11, 449.
[100] Exhibit R2, SM11,448.
[101] Exhibit R2, SM11,448.
It appears that the Applicant did not respond to this email.
While there is material in evidence which makes me doubt that the applicant was married in February 2012 as claimed on the marriage certificate, I am satisfied that he was married by the end of May 2012.
The next correspondence from the Applicant which the Tribunal has access to is dated 26 June 2012 from the Applicant indicating that he had been granted a refugee visa.
In the months which followed the security situation for Hazaras continued to deteriorate in Quetta. Eventually the Applicant was able to obtain an airline ticket and an exit permit. The Applicant never advised Australian authorities that he was married. On the contrary, on 3 October 2012 the Applicant signed a ‘Document for Travel to Australia’ at Islamabad Airport,[102] which stated (right next to where he signed) ‘never married’. He explained this deliberate failure to advise the Department of the change in his circumstances in the following terms: [103]
Just as far as I remember, I think I signed this document when I was at the airport before I came here.
…between the time when you were married in February 2012 and when you left from Islamabad, why did not - did you not tell the Department of Immigration that you were married?
At that time, I didn’t know. I didn’t have information that I had to inform the Department about - about my marriage, although our intention was not to travel together, so (indistinct) information (indistinct) we didn’t want to travel together, still I had to contact the Department about this changes about my marriage. I didn’t know that I had to do that. Everything at that time after my marriage, my relationship was not really good with my in-laws, like, in the - Habiba’s family, so the whole relationship was in a kind of like confusion, a very confusing situation at that time, and there were, like, other issues and everything, so I - I just - I didn’t want to travel together so I didn’t know that I - still I have to inform the Department that we - we got married.
[102] T-Documents, T10, folio 184.
[103] Transcript of proceedings 7 July 2020, 73.
Given that the Smith’s had been making inquiries about whether the Applicant had told the Department about his marriage, and that the applicant had signed an undertaking to inform the Australian Government of any material changes to his circumstances, I am satisfied that the Applicant knew at the time that he should advise the Department of his change in status and consciously chose not to.
The Applicant arrived in Australia on or about 15 October 2012. He moved in with the Smiths and stayed there for a number of years until he moved out with Habiba.
The first time Australian authorities became aware of the fact that the Applicant was married was when Habiba submitted an Offshore Humanitarian Visa application which included a marriage certificate and a supporting statement from the Applicant. Habiba’s application was successful and she too moved to Australia and moved in with the Smiths in about January 2014.[104]
[104] Transcript of proceedings, 8 July 2020, 87.
The Applicant’s friends observed that the relationship lacked warmth.[105] The couple moved out from the Smiths to a place of their own but the relationship soon deteriorated due to the intervention of someone the Applicant described as Habiba’s brother.[106] This is a little surprising given that Habiba’s brothers were apparently all in Quetta, Pakistan according to her visa application[107] but I draw no adverse conclusions about the Applicant on the basis of that.
[105] Transcript of proceedings, 24 September 2020, 507-508.
[106] Transcript of proceedings, 7 July 2020, 88-89.
[107] T-Documents, T66 folio 618; T-Documents, T23, folio 257.
The relationship ended after restraining orders were obtained and the couple divorced in 2016.[108] The Applicant has since re-partnered with a woman he met through his work as a painter.
[108] Transcript of proceedings, 9 July 2020, 189.
On 13 October 2016, the Applicant applied for Australian citizenship. Again, the document included a signed declaration that the information supplied in the form was complete, truthful and correct in every detail. Again, the information supplied did not meet that description. The Applicant used the name Juma Khan Nazari and the date of birth and family structure which he had used on his successful visa application. However, he failed to disclose most of his life history. He falsely claimed that he lived in Afghanistan from 21 October 1984 to 8 May 2010. This left out his time in Pakistan, Indonesia and Nauru which were all significant. I am satisfied that the exclusion of that information was deliberate.
His application was initially approved. He received a letter from the Minister on 23 March 2017 advising him of this and notifying him of the need to attend a citizenship ceremony and make the Pledge.[109] He arranged to make the Pledge on 6 June 2017.[110] On 30 May 2017 the Department picked up through its cross-checking procedures that the Applicant had previously sought a visa under the name Haidari. The Department took steps to prevent the Applicant from finalising his citizenship.[111] He was then invited to attend a citizenship interview on 20 June 2017 which he did along with his migration agent.[112]
[109] T-Documents, T5, folio 168.
[110] T-Documents, T6, folio 170.
[111] T-Documents, T8, folio 174.
[112] T-Documents, T9, folio 176.
At the start of the interview he was asked if there was anything in his citizenship application that he would like to add to or change. The Applicant answered ‘no’.[113]
[113] T-Documents, T12, folio 186.
At some point, I am assuming before the commencement of the interview, the Applicant filled out a Personal Particulars for Assessment including Character Assessment.[114] In the section concerning past employment, the Applicant failed to disclose his studies in Pakistan, the fact that he had a Bachelor of Arts degree from the University of Balochistan or the fact that he had undertaken trade courses in Quetta.[115]
[114] T-Documents, T13, folio 189.
[115] T-Documents, T13, folios 191-192.
A lengthy interview with the Applicant followed and the answers given by the Applicant were for the most part consistent with the facts I have found above. However, the Applicant did suggest in the course of the interview that he did not ‘have the knowledge, I didn’t have the information to let Immigration know’ about his marriage. In light of the email correspondence with the Smiths I do not accept that statement. The Applicant also significantly played down the extent of his studies. When describing his time in Quetta between 2004 and 2008 he answered in the following terms:
I spend my time living and studying. I used to go to computer course and also learning a little bit of English and on top of that I studied some preparation course for getting into university exam and I had my time busy with these things.[116]
[116] Exhibit A4, 1165.
I am satisfied that this was a deliberate attempt by the Applicant to deceive his interviewers as to the extent and nature of his studies while in Pakistan.
The Applicant was then confronted with the application he had submitted in the name Haidari. He initially denied that he had made the application. After a break he returned to the interview conceding that he was the person who had made the application and he had paid money for a false passport to be obtained but was unsure whether the false passport had been obtained in Afghanistan or from a consulate of Afghanistan in Pakistan.[117]
[117] Exhibit A4, 1735.
On 12 June 2018 the Department issued a natural justice letter advising that it was considering taking steps to cancel the Applicant’s application approval on the basis that he was not of good character. The letter indicated that the bases on which that was being considered were as follows: [118]
a)False or misleading information provided to the Department in the form of multiple identities;
b)That the Applicant’s marriage was not genuine;
c)The Applicant’s Tazkira used in support of his application was false;
d)That the Applicant’s evidence about his Afghani citizenship was inadequate and the evidence suggested a stronger connection with Pakistan;
e)Concerns that the Applicant had not been honest about his age.
Response to Department’s preliminary findings
[118] T-Documents, T16, 206.
On 10 July 2018 the Applicant submitted a statement in response.
The Applicant admitted that he had submitted a false application under the name Haidari using a false passport which he had obtained through an agent. He went on to explain that he did so because of his ‘horrible security situation made me to follow it in order to save my life’.[119] I do not accept that this is an accurate description of the conditions in which the Applicant was living at the time. I am satisfied that he was living safely in Quetta, studying at the University of Balochistan and undertaking work obtaining trade qualifications.[120]
[119] T-Documents, T20, folio 226.
[120] Exhibit R2, SM8, 253-255.
The Applicant also gave an account of his conversion to Christianity in this document. I am satisfied that that account is accurate.
The Applicant strongly denied that the Tazkira he submitted was false claiming that he was present personally in Ghazni province when the Tazkira was issued. While I have doubts about that story on balance I am prepared to accept that the Applicant is giving a truthful account of how he came to obtain the Tazkira. The Applicant admitted to residing in Pakistan for long periods but denied that he was able to continue his education legally.
The Applicant accepted that he did not know his true date of birth but explained that adequately. The Applicant denied that his marriage was contrived and said it only became difficult in May 2014 when it started to break down.
The Applicant highlighted the positive work he had done through the Nazari Foundation which continued after he left for Australia in the form of raising money to build and develop schools.
Subsequent investigations
On 26 July 2019 the Department sought assistance from the Consulate in Islamabad to verify the genuineness of the Applicant’s educational documents supplied as part of his second visa application including his results and degree issued by the University of Balochistan and his Auto Electric qualification.[121]
[121] T-Documents, T25, folios 272-275.
On 2 September 2019 the Department received a response in the following terms:[122]
Post is working on this particular referral. Provided University of Balochistan degree has been verified as Genuine. Degree provided is an old one. Post has requested our contact to get the records however they are manual records not digital, that’s the reason it is taking a lot of time. Follow up has been done on this referral however no outcome has been received yet.
[122] T-Documents, T26, folio 276.
On 12 September 2019 a delegate made a decision not to cancel the Applicant’s visa despite the fact that the delegate was satisfied that he had provided false/misleading information. The decision was made on the basis that there were reasons which outweighed the reasons to cancel which were:
a)His time spent in Australia;
b)He had been employed since 2016 and visa cancellation would make it difficult for him to support himself;
c)He is in a relationship with an Australian citizen;
d)He has community support;
e)He has created a school in Afghanistan to help women and children with education and therefore has an adverse profile in Afghanistan
The Department noted ‘He will remain on a PR if [his citizenship application is] refused and therefore can still work, be in a relationship and enjoy his community support.[123]
[123] T-Documents, T28, folio 281.
On 3 October 2019 it appears more information was obtained in relation to the Applicant’s degree. The information was expressed in the following terms: [124]
The client’s Degree from Baluchistan University was verified as genuine as per the University’s electronic records, however the physical file could not be located. I also note the comments made by Mr Atta Ullah “This certainly creates a doubt in the mind as the file should be present in the record room”.
[124] T-Documents, T29, folio 283.
Further inconclusive inquiries were made.
Notwithstanding this slightly equivocal indication I am satisfied that the Applicant did study at the University of Balochistan. I am satisfied of that because there are electronic records held by the University of Balochistan recording his enrolment. Further, the Applicant supplied documents which purport to be University of Balochistan records with his second visa application which record him as studying at the University of Balochistan. Further, there is a perfect correspondence between the academic results document which the Applicant submitted with his second visa application and the results the Applicant reported to the Smiths by email in February 2007.[125] In combination this evidence satisfies me that the Applicant did study at the University of Balochistan. I am also satisfied that in the same period, the Applicant obtained an auto electrical qualification.[126]
[125] Exhibit R2, SM3, 74.
[126] Exhibit R2, SM3, 76; SM11, 412.
On 8 November 2019 the Applicant was sent a further natural justice letter which outlined in detail the concerns the Department had about the Applicant’s inconsistent claims concerning his educational history.[127]
[127] T-Documents, T34, folios 326-334.
On 3 January 2020 the Applicant submitted a statutory declaration in support of his arguments that the approval of his citizenship application should not be revoked.[128]
[128] T-Documents, T38, folios 343-350.
In the statutory declaration he positively asserted: [129]
[129] T-Documents, T38, 347.
a)I never undertook any tertiary education in Pakistan so I had none to list;
b)I did not submit any documents because I did not apply to enrol at the University of Balochistan;
c)I did not submit any documents to enrol at the Technical Training Centre Quetta because I never applied to enrol
d)I did not submit any documents to enrol in this Master Degree [in International Relations] because I never applied to enrol
e)All of the educational documents [I provided previously] were false documents
f)I did not ever obtain a Bachelor of Arts Degree from anywhere;
g)I have never been enrolled in, or attended, any formally recognised Government school, tertiary institution, University or Trade Technical Institute in Pakistan or anywhere else. I never attended any classes for a Masters Degree;
h)I did attend some classes in a private educational centre in Pakistan during my time there as a refugee but I do not have any documentary evidence of those classes except some English and computer classes.
These claims are consistent with the Applicant’s fourth and final application for a visa. I am satisfied that the applicant was not being truthful in this statutory declaration. The statements in the document are inconsistent with statements made by the applicant in previous visa applications to which he attached documents establishing that he studied at the University of Balochistan. Further, the statements are inconsistent with emails the applicant sent to his friends years before describing the study he was undertaking. Further, the statements are inconsisent with the electronic records at the University of Balochistan which show that he was enrolled. .
Consequently I also reject the applicant’s claim that he has been honest with the Australian Government since late 2010. The Applicant asserts that : [130]
It was when I registered with the UNHCR in September, 2010 that I recognised that I had been previously stupid in following advice from others who had tricked me into spending a lot of money to achieve an end which they could not deliver, namely resettlement as a refugee in a safe country. The UNHCR emphasised that I need to be completely honest in my dealing with them and with any Government – specifically Australia – when I was making an application for refugee status. I did not include any false information or documentation in my Form 842 or the Form 80 submitted in 2011 or on my application for Australian citizenship.
[130] T-Documents, T38, folio 347.
I am satisfied that statement was false. Any application which included a denial of study at the University of Balochistan I am satisfied is false. It is worth noting that the Applicant’s Australian supporters believed in 2010 that the Applicant had completed university studies when they supported his second application for a visa.[131]
[131] T-Documents, T45, folio 451.
The Applicant’s claim that he did not give false information on his Australian citizenship application is also untenable. In that application he asserted that he lived in Afghanistan between 2002 and 2010.[132] This contradicts the information provided in his successful visa application.[133]
[132] T-Documents, T4, folio 155.
[133] T-Documents, T57, folio 578.
Following receipt ot the applicant’s statutory declaration, a decision was made to cancel the Applicant’s citizenship approval on the following grounds:
a)The Applicant’s Tazkira is a bogus document;
b)The Applicant failed to declare that he had previously been refused a visa under a different identity;
c)The Applicant’s claim that he lived as an illegal refugee without any registration and residence card was rejected on the basis that the Applicant was living and studying in Pakistan from 2004 until 2009 during a period when Afghan refugees were permitted to register and receive a Proof of Registration Card;
d)The Applicant deliberately mislead the Department as to his marital status on the form signed on 19 June 2012.

The delegate formed the view that:
Your claim to have never studied at university in Pakistan and that the educational certificates provided were fraudulent is motivated by a desire to conceal your actual status in Pakistan and be successful with your application for citizenship rather than a genuine intention to be truthful with the Department.[134]
[134] T-Documents, T2, folio 24.
At the hearing the Applicant gave the following evidence in relation to his educational history:[135]
[135] Transcript of proceedings, 8 July 2020, 114-115.
Mr Nazari, have you got any idea why there may be an electronic record of your degree - or that degree - in the University of Baluchistan?
I said that they promised me that they will do my enrolment (indistinct) they never done that, I mean enrol me in university and I pay them and they promised me that they were willing to enrol me and they were going to give me some qualification and even they didn't enrol me and they got the certificate after some years - for three years for the certificate after they promised me. But that's why I don't know how they got them or how they arrange the certificate for me.
So Mr Nazari, did you actually - you said, I think, that you did some study in a private school and while you were doing that you thought you were going to get a certificate at the end, is that correct?
Yes, I mean the certificate, it really was like official.
So you were doing paid studies in Pakistan, is that what you're saying - but not at the university itself?
Yes.
So that transcript of study that you provided, did you do those studies, English, (indistinct) education et cetera, are they what you studied?
(Indistinct) subjects like history, politics, English.
That's what you studied?
Yes.
So, as far as you're concerned, that document that you provided - "Transcript of study" that's a false document, is that correct?
Yes, it's false document I think because I didn't obtain it officially.
So, looking at - there's another document that's referred to, a Masters degree - sorry, let's go to the Technical Training Centre of Quetta which is at T25 page 275 and that document - is that a false document?
Yes, it's because it was - that was taken - or it was obtained through the same people, which why which they arranged the certificate for university.
So did you actually do any technical training anywhere?
[I have] worked for a while for a very short period of time, like electrical workshop or something but no, no formal (indistinct) education in Balochistan.
…In your fourth visa application you noted that you had obtained an undergraduate BA degree and the trade certificate. So that's these documents that we've just referred to, that you obtained those degrees between 2004 and 2008, is that correct?
The third application.
The third application, yes. So in that one you have stated that you have done a BA and an auto electric trade certificate. That is at page 585. Is that a false statement?
Yes, at that time I still wanted to work and continue work and study in those field and I - at that time I thought those are correct, yes, but later on I found out I knew that those were not correct qualification and I shouldn't use it any more.
This confusing evidence does nothing to alter my view that the Applicant’s statements in his statutory declaration concerning his education were deliberately false and that he did study at the University of Balochistan.
Given these findings it is now necessary to consider whether I can be satisfied that the Applicant is not of good character.
Good character – meaning
The meaning of the term good character in the Act is well explained in the Australian Citizenship Policy.[136] It provides as follows:
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full Federal Court judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs: [137]
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.
[136] Australian Citizenship Policy, ch 11.
[137] (1996) 68 FCR 422, 431-432.
The phrase ‘enduring moral qualities’, for the purposes of the Act, is specified in the Australian Citizenship Policy to encompass the following concepts:[138]
·characteristics which have endured over a long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of Australian society.
[138] Australian Citizenship Policy, ch 11.
The good character requirement necessitates consideration of an Applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
A decision-maker can be satisfied that an Applicant is of good character if the Applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the Applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the Applicant’s character is an important component in the Minister’s decision to approve or refuse the Applicant’s citizenship application. For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application: [139]
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of state. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
[139] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].
An Applicant who is a person of good character would generally be expected to exhibit the following characteristics:[140]
[140] Australian Citizenship Policy, ch 11.
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds, pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example;
·not intentionally provide false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
·not evade immigration control at the border or live unlawfully in the community after their visa ceased, or assisting others to do so, or have involvement in people smuggling or trafficking;
·not knowingly enter into a bogus marriage or pretend to be a de facto partner of another person;
·not conceal criminal convictions;
·not commit fraud against the Commonwealth such as tax fraud or Centrelink fraud;
·not give false names and/or addresses to police;
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide;
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia; and
·not be the subject of any verifiable information causing character doubts.
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. The above examples provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an Applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an Applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.
The Citizenship Procedural Instructions (CPI) 15 provide a framework for assessing an Applicant under the ‘good character’ provisions. Decision-makers must:
·consider any character issues that arise on the facts of a case;
·consider all relevant information;
·guard against bias;
·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
·be mindful that a person who may not have been of good character can become a person of good character;
·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an Applicant is, or is not, of good character.
It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case.
One other principle which is relevant when approaching the question of good character is:
…a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.[141]
[141] Re Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7].
I have had regard to these matters in considering whether I am satisfied that the Applicant is not of good character.
Summary of Respondent’s submissions
Because the Applicant’s citizenship application was approved and the question for the Minister (and the Tribunal standing in his shoes) is whether the approval should be cancelled, the Tribunal must be positively satisfied that the Applicant is not of good character before it can consider whether to cancel the approval.
The Respondent contends that while there is significant uncertainty about much of Applicant’s life, there are a number of significant adverse matters which the evidence establishes took place. Those matters are as follows:
a)The Applicant applied for Humanitarian and Refugee visas in the past under two different identities – Mohammed Zahir Haidari (DOB February 1979) and Juma Khan Nazari (DOB October 1984). During his citizenship assurance interview conducted on 20 June 2017, the Applicant initially denied that he had made an application for a visa using the name Haidari but he eventually confessed that he had, and that he had provided a bogus Afghan passport in support of the visa application in the name of Haidari;
b)The Applicant failed to disclose that he was married or in a relationship in any of his dealings with the Department, and positively misrepresented that he was never married including in forms signed immediately before his departure from Pakistan to take up residence in Australia on 3 October 2012. The Applicant provided incorrect information to the Department about the relationship in order to achieve a migration outcome for himself and that his conduct is further evidence that the Applicant is not of good character;
c)The Applicant has provided a bogus Tazkira to the Department. The Applicant provided the Department with an Afghan Tazkira (no.659015) in the name of Juma Khan issued 29 July 2003. The Department was notified by the Afghanistan Central Civil Registration Authority (ACCRA) that ‘the mentioned Tazkira has not been issued by the Population Registration Department”;
d)The Applicant has provided false and inconsistent information about his residency and status in Pakistan – in particular, the Applicant gave false information in his Citizenship Application which stated that he lived in Afghanistan from his birth until 8 May 2010 and in Pakistan from 8 May 2010 to 3 October 2012. In fact, the Applicant lived in Pakistan soon after he returned to Afghanistan in late 2003.
Summary of Applicant’s submissions
The Applicant’s key submissions are as follows.
First, the Applicant contends that I should be satisfied on the basis of the character references given about the Applicant by his friends that he is of good character. I have read those references and do not doubt that the Applicant has been a well behaved, courteous and industrious member of the Australian community since he arrived here. However, I am also satisfied that the Applicant has been deliberately dishonest with Australian officials over a number of years including in his evidence to this Tribunal. I do not doubt that the Applicant is a very nice person and his friends would like him to become a citizen, but I am also satisfied that his willingness to engage in deception, which continues to this day, means he is not of good character.
Second, the Applicant contends that ‘on one occasion, in desperation, as a traumatized young man trying desperately to survive in conditions which many others found intolerable, he tried to use a false identity…His action was driven by sheer desperation and fear of death’.[142] I don’t accept any part of that narrative. I am satisfied that the Applicant continues to attempt to deceive Australian officials and this Tribunal. The assumption of the name ‘Haidari’ as an identity was only one of a number deliberate deceptions which the Applicant engaged in. These are documented above. Further, when he decided to engage in the Haidari deception, the evidence satisfies me that the Applicant’s living conditions at the time were far from desperate. He was studying at the University of Balochistan, had his expenses funded by the Smiths and was pursuing a trade. There was no pressing reason for the Applicant to engage in such calculated dishonesty.
[142] Applicant’s Statement of Facts, Issues and Contentions dated 4 May 2020.
Third, the Applicant contends that his Tazkira is genuine. I accept that submission.
Fourth, the Applicant submits that he will uphold the law if granted citizenship. Given that the Applicant’s dishonesty continued into the citizenship process and included the filing of a false statutory declaration I am not satisfied that is the case.
Fifth, the Applicant submits that he has long been recognised as a man of enduring moral qualities. He played a positive role while living on Nauru, has no criminal record anywhere in the world, he has positive character references, is employed, pays taxes and has admitted that he previously misled the Department.
In relation to this submission, I agree that his behaviour on Nauru in teaching and helping others is to be commended. He has shown himself over many years to be a generous and thoughtful person willing to take risks to assist others. I recognise that. Sadly, he has for many years chosen a path of deception as his best means of obtaining a better life in Australia and ultimately citizenship. He has admitted to misleading the Department in the past but only when he is caught red-handed. This does him no credit. Further, his dishonesty is not just in the past. He gave false evidence to this Tribunal when he denied the genuineness of his enrolment at the University of Balochistan. The fact that the Applicant engages in deliberate dishonesty when he knows that it is important to tell the truth is a serious mark against his character. The fact that he has also lied about his identity and his family to his friends in the past makes this worse. In my assessment, his enduring dishonesty over more than a decade which even to date has not been addressed or resolved persuades me that he is not of good character.
Conclusion
I am satisfied that the Applicant engaged in the following conduct which satisfies me that he is not of good character:
a)He submitted a visa application using an entirely false identity (Haidari) supported by forged or bogus travel documents with the deliberate intention of deceiving the Australian Government and gaining entry into Australia. In pursuing this goal, he lied to his friends who were at that time supporting him financially and persuaded them to introduce themselves to a person to whom he was unrelated in the belief that he was the Applicant’s brother. A person of good character would not do this. I am also satisfied that when he decided to submit an application under a false name there was no pressing humanitarian reason for him to engage in this deception. He was living in Quetta, was entitled to live there and was undertaking tertiary studies. He was not in imminent danger of any kind;
b)The Applicant lied on his fourth visa application when he listed himself as unemployed in the period 2004-2008 and denied having higher education and trade qualifications. These lies were compounded in his citizenship interview with the Department, his statutory declaration submitted to the Department and the fact that he maintained in these proceedings that he did not undertake formal study at the University of Balochistan. People of good character do not lie about such things and deceive government officials about important matters;
c)I am also satisfied that the Applicant deliberately denied being married in forms submitted to the Department when he was departing Pakistan. There was nothing about the circumstances which justified the telling of deliberate lies and concealing important facts from Government officials.
These findings provide a sufficient basis for concluding that the Applicant is not of good character.
I have considered whether the Applicant’s work with the Nazari Foundation is sufficient to counterbalance my findings that the Applicant has been consistently dishonest with the Department and the Tribunal. I do not consider that that work does have that effect. The work the Applicant has done with the Nazari Foundation is extremely good work undertaken at great personal risk to himself and he is to be applauded for it.

I should also say that I was favourably impressed at the hearing by the Applicant’s courtesy and industry. He is now working in Australia, is self-supporting, and has many loyal Australian friends and ties with his community.
It is regrettable that the Applicant has such a long history of deception and in the Tribunal proceedings demonstrated an ongoing willingness to mislead officials about important aspects of his past.
I am not satisfied that the Applicant’s dishonesty in his various applications and in the evidence he gave to the Department and to the Tribunal is the product of adverse circumstances or temporary lapses in judgment. When viewed as a whole the Applicant’s life story reveals a man who at key moments when it is in his interests to do so, is willing to say things and swear to things which are untrue, and who also fails to correct things that he knows are wrong. In light of this character trait I am satisfied that the Applicant is not of good character. I am satisfied that I should not exercise my discretion to not cancel the approval.
Accordingly, the decision under review is affirmed.

I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.

......................................[sgd]..................................
Associate
Dated: 30 June 2021

Date of hearing:
7-9 July 2020, 21-22 July 2020, 22-24 September 2020

Representative for the Applicant:

Solicitors for Respondent:

Marion Le Consultancy

Mr Adam Ray, Clayton Utz

[2021] AATA 2000

30 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction