Rafaat and Minister for Immigration and Border Protection (Citizenship)

Rafaat and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1743 (18 October 2017)
Division:GENERAL DIVISION
File Number(s): 2017/0183
Re:Asadullah Rafaat
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:18 October 2017
Place:Melbourne

The Tribunal:
(a) pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), sets aside the decision under review; and
(b) remits the matter to the decision-maker for reconsideration in accordance with a direction from the Tribunal pursuant to s 43(1)(c)(ii) of the AAT Act that the applicant is a person of good character for the purposes of paragraph 25(2)(b)(iii) of the Australian Citizenship Act 2007.
..........[sgd]...............................................
Ms Anna Burke, Member
CITIZENSHIP - cancellation of approval for Australian citizenship by conferral – whether the applicant is not of good character – whether the application for citizenship made by the applicant should be approved – decision under review set aside and remitted.
Legislation
Australian Citizenship Act 2007
Cases
Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422
Re Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) (the Policy)
REASONS FOR DECISION
Ms Anna Burke, Member
18 October 2017
INTRODUCTION

Asadullah Rafaat (applicant) is a 46-year-old citizen of Afghanistan, a Shi’a Muslim of Hazara ethnicity, who first arrived in Australia on 15 April 2010 as an unauthorised maritime arrival. Mr Rafaat has been married twice, his first wife dying in childbirth around 1998; he remarried in 2000. He and his second wife have four children. Mr Rafaat’s wife and children currently reside in Quetta, Pakistan. Mr Rafaat was self-employed in Afghanistan. From a young age he worked on the family farm; prior to leaving for Australia he owned and ran a small shop selling flour in the local market.
On 13 September 2010 a delegate of the Minister concluded that Mr Rafaat was a person to whom Australia owed protection obligations and he was subsequently granted a protection (class XA) Visa on 17 November 2010. Mr Rafaat’s refugee status assessment record of 13 September 2010 found: The claimant has provided consistent information about his identity is of Hazara appearance and fluent in the Hazara dialect... The claimant has provided largely consistent claims in his entry and IAAAS and RSA interviews… That having carefully consider the claimant’s account in terms of detail, internal consistency and credibility in relation to country information. I am satisfied that the claimant’s fear of persecution as defined under the Refugees Convention is well-founded.
On 20 November 2014 the applicant lodged an application for Australian citizenship by conferral. The application was approved on 23 January 2015. However, on 9 February 2015 a notice of intention to cancel his citizenship approval (notice) was sent to the applicant because the case officer thought he may no longer meet the eligibility criteria under the Australian Citizenship Act 2007 (Cth) (the Act).
The case officer subsequently decided to cancel the approval of Australian citizenship by conferral for the applicant under s 25(2)(b)(iii) of the Act, which relates to his good character.
The applicant has applied to this Tribunal for review of the delegate’s decision.
At the hearing, Mr Rafaat was represented by Ms Jill Vidler acting on behalf of Beena Rezaee Legal & Migration and assisted by a Hazaragi interpreter Mr Hamraz Zaki. Mr David Brown, solicitor advocate from Australian Government Solicitor appeared on behalf of the respondent Minister.
BACKGROUND
Mr Rafaat lodged a Protection Visa application, with the assistance of Florin Burhala Lawyers, whilst on Christmas Island dated 23 July 2010. In it he stated that:
·he had six children ranging in age from 3 to 15;
·he included two sons who were named as Mansour Rafaat age 15 and Zakaria Rafaat age 13;
·his information was complete, correct and up-to-date in every detail; and
·if he had given false and misleading information any application may be refused and any visas issued may be cancelled.
Upon conferral of his Protection visa Mr Rafaat relocated to Queensland as he could obtain work. He has continued working since that time supporting himself and his family back in Pakistan. He has travelled back to Pakistan on several occasions to visit his family. He has since relocated to Victoria where he is training to be a baker.
In 2011 Mr Rafaat’s wife and six children left Afghanistan and sought refuge in neighbouring Pakistan.
On 28 May 2011 Mrs Shakila Rafaat, as the main applicant, lodged with the Department of Immigration and Border Protection (‘Department’) a Global Special Humanitarian visa (subclass 202) application for herself and six children. The application included the following information:
·details of her six children including Mansour Rafaat and Zakaria Rafaat, whom she described as step children from her husband’s previous marriage;
·a copy of a birth certificate for Zakaria Rafaat dated 12 May 2011 stating he was the son of Asadullah Rafaat. According to his own ID card he was born in Ghazni province of Afghanistan on 31 December 1997;
·a copy of a Tazkara for Zakaria Rafaat dated 17 May 2011 stating he was the son of Asadullah Rafaat, born in Zardalo of Afghan nationality on 31 December 1997;
·a copy of a birth certificate for Mansour Rafaat dated 12 May 2011 stating he was the son of Asadullah Rafaat. According to his own ID card he was born in Ghazni province of Afghanistan on 31 December 1996;
·a copy of a Tazkara for Mansour Rafaat dated 17 May 2011 stating he was the son of Asadullah Rafaat, born in Zardalo of Afghan nationality on 31 December 1996;
·Mrs Rafaat signed the application on 15 May 2011 and Mr Rafaat signed the application on 28 May 2011 declaring the information supplied was complete, correct and up-to-date in every detail and that if any false or misleading information was provided, then the application may be refused, and any visa that was granted may be cancelled;
·a daughter, Mina Rafaat born on 18 March 2012, was subsequently added to the application; and
·a handwritten birth certificate for Mina Rafaat dated 24 September 2012 was subsequently provided to the Department indicating that Mina had been born on 18 March 2012 in Quetta.
On 25 February 2013 Mr Rafaat sent an email to the Department advising that his son Zakaria Rafaat had been killed in a bombing in Quetta, Pakistan on his way home from school. Mr Rafaat stated in his email:
I advise you that Zakaria Rafaat is not with us anymore and he has been so unlucky not reuniting with me in Australia. I would like to request from Australian government to show compassion to the rest of my family.

Zakaria was later discovered to be alive with other school children in one of the hospitals in Quetta; Mr Rafaat failed to advise the Australian authorities of this at the time.
On 14 August 2013 the Department advised Mrs Rafaat that her application for an offshore humanitarian visa application for herself and her seven children had been refused.
On 11 October 2013 Mr Rafaat sent an email to the Department stating:
I would like to state that Mansour Rafaat (DOB 31/12/1996) and Zakaria Rafaat (DOB 31/12/1998) are not my children.
I apologise for having included them, I was thinking of helping them for their future but they are not my children.
They are my friend’s children. Their father’s name is Mohammad Akram and their mother’s name is Mah Begum. They are living with their parents in Afghanistan.
On 20 October 2013 Mr Rafaat lodged an application to sponsor his wife for a Partner (Provisional) visa (subclass 309) (309 visa) to migrate to Australia. The sponsorship application included details of his five children. This included a copy of his youngest child Mina’s Tazkara, with a date of issue that is hard to distinguish, showing she was born on 18 March 2012 “at the above village,” which on the form is identified as Zardalo in the province of Ghazni in the district of Qara Bagh, and that she is of Afghan nationality.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether the applicant is of good character?
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act provides, in part:
24 Minister's decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

....
Section 25 of the Act provides, in part:
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.
The term good character is not defined by the Act, however guidance is provided by the Citizenship Policy (Policy) issued by the Minister in 2016.
The stated role of the Policy is to support the Act by providing guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007.
Chapter 11 of the Policy deals with good character. Importantly, it is expressly stated at the outset that it is not departmental policy for decision makers to be bound by a check-list. Rather, decision makers are to look at the merits of each case and turn their minds to the issues of character until they are satisfied, on a reasoned basis, whether the applicant is, or is not, of good character.
Reference is made to the definition of good character by Lee J in Irving v Minister of State for Immigration Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422 (at 431-432):
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 to 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 whilst 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.
The Policy also refers to Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, where Deputy President Breen discussed the role of the character requirement in a citizenship application (at para 8):
The grant of Australian citizenship is a privilege not to be 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 the 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.
To assist decision-makers the Policy contains a non-exhaustive list of the characteristics of good behaviour, which is set out below:
an applicant of good character would:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·be truthful and not practice deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
o   providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
o   involvement in a bogus marriage
o   concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
o   involvement in Centrelink or Australian Tax Office fraud
o   giving false names and/or addresses to police
·not to be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not to be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·not to have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not to have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not to be the subject of any extradition order or other international arrest warrant
·not to be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.
The Policy also provides guidance on weighing up the character decision. It points out that the assessment of whether an applicant is of “good character” requires the consideration of an aggregate of qualities. More weight is to be given to serious offences.
The Policy further states:
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia’s community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
The Policy references Deputy President Forgie in Zheng v Minister for Immigration and Citizenship [2011] AATA 304, to demonstrate this point:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
EVIDENCE
The evidence before the Tribunal included two sets of documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), referred to as the “T documents” and the “Supplementary T documents”, Mr Rafaat’s witness statement, application for review and character references from numerous individuals.
In the delegate’s determination to cancel the approval of Mr Rafaat’s conferral of Australian citizenship he stated:
When looking at your behaviour as a whole I find that you have provided false and/or misleading information to the Department during the course of your immigration history, spanning several years. In addition, I find that you provided true information on the basis that you considered doing so would lead to the immigration outcome you were seeking. I consider that a person of good character would not provide false and/or misleading information to this department in order to secure an immigration outcome.
The respondent contends that Mr Rafaat has admitted to having attempted an elaborate fraud on the Department over a period of three and half years, from his arrival in Australia in April 2010, until his wife and children’s Offshore Humanitarian visa application was refused in August 2013.
Further, the respondent contends that the fraud was perpetrated over an extended period of time involved dishonest behaviour and elaborate measures directed at misleading the Department in order to achieve a migration outcome. The respondent contends that Mr Rafaat provided false information and documentation on numerous visa applications in respect of Zakaria and Mansour, additionally providing a false Tazkara for his daughter Mina who was born after the family left Afghanistan for Quetta, Pakistan.
Mr Rafaat acknowledged that he had previously provided false information to the Department and recognised the seriousness of his actions. He expressed remorse for his actions to the Tribunal but was adamant he was not trying to deceive anyone or seek advantage from his actions but to assist struggling family members. He reiterated at the Tribunal that it was his actions in advising the Department that he had falsely claimed Zakaria and Mansour as his biological children which had led to the Department discovering the deceit.
Mr Rafaat indicated that he had falsely claimed Zakaria and Mansour as his biological children but had not knowingly provided a false Tazkara for his daughter Mina.
Mr Rafaat advised the Tribunal, in his written statements and at the hearing, that much of his troubles had resulted from his lack of formal education, his limited ability to read and write in any language, let alone English, the trauma of his escape from Afghanistan, the miserable journey to Australia and his reliance on well-meaning advice from members of his community.
Claim that Zakaria and Mansour are Mr Rafaat’s biological children
In a statutory declaration of 29 November 2016 Mr Rafaat stated:
In approximately 2001, my extended cousin Mohammad Akram, who lives in Zardalu came to me and begged me to help him save his children. Akram is a very poor person. He had been paralysed by the Polio virus as a child, and has been a paraplegic throughout his life. In Afghanistan, where even capable men struggle to provide for their children, Akrum could not look after himself, his wife or his children. Akram could not educate or even feed his children. Akram and his wife Mah Begum pleaded with me and my wife to help his children.
Even extended family members share close bonds in Afghanistan. My culture and tradition dictated that I should help him as best as I could. My wife and I were heartbroken at Akram’s situation, and we genuinely want to help him. We adopted his children Mansour (born 1996) and Zakariya (born 1998) so that Mah Begum could better look after Mohammad Akram’s dire situation. We treated his children as our own, fed them, provided for the needs and helped them learn to read and write. Mansour and Zakariya spent most of their time at our house. They became our family members and we saw them as our own children.

Mr Rafaat advised the Tribunal that he considered Zakaria and Mansour as his own children and indicated on various visa applications that they were his children. Community members had advised him not to describe them as adopted as there is no formal adoption process in Afghanistan and it was easier to claim them as his biological children. He expressed to the Tribunal that he was not trying to deceive but was simply inexperienced, uneducated and was provided with poor advice on his protection and humanitarian offshore sponsor visa.
The respondent argued that Mr Rafaat’s application for a protection visa was submitted with the aid of legal representatives. Mr Rafaat also has not provided any corroborating evidence substantiating the claims made in respect of his paraplegic distant cousin. Further, Mr Rafaat in an email to the Department had described Zakaria and Mansour as his friend’s children.
Mr Rafaat’s representative advised the Tribunal that the legal assistance provided to asylum seekers on Christmas Island was at best perfunctory. The forms are numerous, complex and processing is often performed when the asylum seeker has recently arrived on the island. Asylum seekers are often traumatised by the journey, stressed, and anxious for family members left behind.
Mr Rafaat again advised the Tribunal that he was sorry for his actions. He had not sought to include Zakaria and Mansour as a means of obtaining asylum for himself or his family but considered them his children and believed he was merely continuing his role as a good relative by providing them with protection; that he included Zakaria and Mansour on his original application for protection, that this information was copied onto the Global Special Humanitarian visa for his wife and children; and he had not sought assistance in preparing the application. He was subsequently advised by members of the community that he should not change any information on the documentation as this would cause delays.
In the statutory declaration of 29 November 2016 Mr Rafaat stated:
Owing to my lack of education, I did not understand the immigration process in Australia, and I did not know the best way to help my family in their dire situation. I consulted fellow refugees, and engaged the assistance of community members to complete the sponsorship application. Based on their advice I included the details of my family composition exactly as it appeared in my protection visa application. I was advised by the community members that if I made any changes the Department of Immigration would delay or even refuse my sponsorship application. I maintain that Mansour and Zakariya were my children from my first marriage because community members have advised me not to make any changes to my application to avoid any further delays in processing.
Mr Rafaat subsequently sought assistance from a migration agent, Mr Babak, who advised him to be completely honest with the Department. At this time Mr Rafaat’s wife and children were living in Pakistan and the situation was very dangerous. Zakaria and Mansour were now adults and their parents advised them to return to Afghanistan as they believed it would be safer for them there. The boys have subsequently moved to Iran to seek work. In the statutory declaration of 29 November 2016 Mr Rafaat stated:
…. Mohammad Akram contacted my wife and me to ask us to return his children. He said the false news of the death of his child had deeply shocked him. He did not want them to live in the dangerous circumstances in Quetta or allow them to travel with us to Australia. I tried very hard to change his mind, but he did not listen to me. I was left with no choice but send both Mansour and Zakariya back to their biological parents in Zardalu.
Further in the statutory declaration of 29 November 2016 Mr Rafaat stated:
I kept receiving contradicting advice form [sic] community members regarding my predicament. Eventually, upon the recommendation of my work colleagues, I engaged the services of a Persian speaking migration agent named Babak Shahafar (MARN: 0004000). I lived in Queensland but the migration agent was based in Sydney. I explained my situation to him over the phone. I made payment into his account, and sought his advice. He advised me to write an email to the Department of Immigration and tell them the truth. He also advised me not to wait for an outcome for the Offshore Humanitarian Visa application, and told me that it was important to lodge a fresh Partner Visa Application. I am illiterate, and at the time was under a lot of stress and psychological pressure due to the long term separation from my family and the frequent target killing of Hazaras in Quetta. I asked if that was the best pathway forward. Babak advised me that once the email had been sent to the Department of Immigration and the partner visa application had been lodge [sic], my family would join me within months. I believed him and said yes to every advice he made.
Mr Rafaat was adamant that the email of 11 October 2013 advising the Department that Zakaria and Mansour were not his children had been drafted by his then migration agent Mr Babak. He advised the Tribunal that Mr Babak had advised him to describe the boys as children of a friend, as distant cousins in the Australian context was too far removed to be considered family.
Mr Rafaat advised the Tribunal he was very glad the email had been sent and felt a great weight had been lifted from him. Mr Rafaat advised the Tribunal that Mr Babak had taken a great deal of money from him, provided him with a very poor service, and had been unable to represent him as Mr Babak had left Australia following the cancellation of his migration agent’s registration.
Mr Rafaat advised the Tribunal and in his statement of 26 May 2017: I have come clean about all the false information I regretfully provided and tried to be as forthcoming as possible to the Department. I have absolutely no intention or plausible reason to deceive the Department in the future.
Bogus Tazkaras for Zakaria and Mansour
The respondent contends that Mr Rafaat lodged two bogus birth certificates and bogus Tazkaras in the names of Zakaria and Mansour.
Mr Rafaat advised the Tribunal that his family had no documentation when they left Afghanistan and that Mansour had sought Tazkaras and birth certificates from an agent whilst the family was residing in Pakistan. He and his wife were unaware that the Tazkaras and birth certificates obtained for all family members were false documents. He has been advised by numerous community members in both Australia and Pakistan since, that the Afghani Consul General in Quetta is unable to provide legitimate proof of identity.
Mr Rafaat was not in Pakistan at the time the Tazkaras and birth certificates were obtained. He was adamant before the Tribunal that neither he nor his family members had sought to obtain fraudulent documentation but had legitimately sought out documentation to provide legitimate proof of identity for their visa applications. Counsel for Mr Rafaat contended it was common knowledge that documentation out of Pakistan at this time for Afghan refugees was highly questionable.
Bogus Tazkara for Mina
The respondent contends that Mr Rafaat provided a birth certificate for Mina indicating she was born on 18 March 2012 in Quetta, Pakistan and a Tazkara for Mina stating she was born on 18 March 2012 in Ghazni province, Afghanistan, and as such, at least one of these documents must be bogus.
In the statutory declaration of 29 November 2016 Mr Rafaat stated:
I posted all my documents to Babak’s address and signed the paperwork as he requested. I permitted him to send emails and letters as he deems suitable. Upon his advice, I request my family members to contact the Afghan Consulate General in Quetta, and obtain a Tazkera for Mina. Shakila is illiterate like me. She contacted the consulate general and provided all our documents and the requested payment to a person at the consulate general. A few days later she was issued with a Tazkera for Mina. I promptly provided a copy of the Tazkera to my migration agent Babak. As illiterate Hazaras from Afghanistan, we did not know how the details or Mina’s place of birth was included in the Tazkera, until we receive the letter from the Department of Immigration on 10 November 2016.
It was Mr Rafaat’s understanding that all Tazkaras identified the holders place of birth as that of their father and therefore did not query Mina’s Tazkara which identified her birthplace as Zardalo, Afghanistan.
Mr Rafaat advised the Tribunal that he provided whatever documentation he had in respect of his wife and children for their visa application and had promptly provided Mina’s birth certificate as soon as it had become available, and that he had no intention of providing false documentation in respect of Mina’s birth.
Mr Rafaat advised the Tribunal that his migration agent Mr Babak had made numerous mistakes in his partner’s visa application, including the inclusion of Amir Hamza twice as a secondary applicant, wrongly recording Mina’s date of birth, and spelling his daughter Madim’s name incorrectly.
Mr Rafaat’s claim of illiteracy
The respondent contends that Mr Rafaat has sought to mitigate his conduct in his dealings with the Department on the basis of claiming to be illiterate. At the hearing, the respondent tested this assertion pointing to Mr Rafaat’s claim on his Protection visa application that he can speak, read and write Hazaragi and that he had completed religious studies from the age of 10 until 18.
At the hearing Mr Rafaat advised that he has undertaken no formal schooling, that the Hazaragi language has no written form, that he did attend classes in the mosque in his village when the weather did not permit them to farm, and he had learnt by rote basic Arabic text from the Koran. He stated that he had signed his Protection visa form when he was in a miserable state and had not completely comprehended what he was signing. Mr Rafaat’s counsel contented that he is functionally illiterate, not only in English, but in his native language as well.
CONSIDERATION
Mr Rafaat presented as a reliable, forthright and honest witness during the Tribunal process. He accepted that he had made a grave error in presenting his culturally adopted children as his biological children in his numerous visa applications.
The Tribunal is satisfied that Mr Rafaat was not seeking to give effect to an elaborate deception over a period of more than three years in order to achieve a migration outcome by making false statements, knowingly producing bogus documents, making false declarations and demonstrated unethical conduct.
The Tribunal accepts that Mr Rafaat was seeking to provide protection to extended members of his family who he viewed as his own children and was not attempting migration fraud. Further, the Tribunal can deduce no benefit that Mr Rafaat would derive in his application for a protection visa by incorporating two additional children on his application.
The Tribunal finds that Mr Rafaat had not received appropriate or adequate assistance in his numerous visa applications from lawyers and/or migration agents; that he has relied incorrectly on advice from trusted community members; has been hampered by his limited understanding of bureaucratic processes and his unfamiliarity with the Australian cultural context, his poor functional literacy, and the stress associated with concern for his family in the precarious situation in Pakistan. Mr Rafaat’s actions, while wrong, were naïve rather than malicious, and arose from his acceptance of poor advice from community members and, more substantially, from the bogus representations made on his behalf by the now discredited former migration agent Mr Babak. In the circumstances of this case foolish judgement is not evidence of bad character.
The Tribunal is satisfied that Mr Rafaat had made a complete disclosure of his deception to the Department, has shown remorse, has worked hard in the Australian community and is at very low risk of deceiving the Department in the future.
The Tribunal is satisfied that a sufficient period of time had elapsed since Mr Rafaat had advised the Department of his false claim four years ago and in that time Mr Rafaat has been a law-abiding member of the Australian community (with the exception of one speeding fine), was working to provide for himself and family, attempting to learn English and undertaking further training to ensure he has ongoing employment into the future.
The Tribunal finds that Mr Rafaat has demonstrated enduring good moral qualities over time that are in conformity with Australian community values, as attested to by character references stating him to be honest, reliable, conscientious and of great integrity.
CONCLUSION
The Tribunal having considered the applicant’s statements, character references and all the evidence placed before the hearing finds that Mr Rafaat is of good character and should not be denied the ability to apply for Australian citizenship.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

.........[sgd]...........................................................
Associate
Dated: 18 October 2017

Date(s) of hearing: 29 August 2017

Advocate for the Applicant:

Solicitors for the Applicant:

Ms Jill Vidler

Beena Rezaee Legal & Migration

Advocate for the Respondent: Mr David Brown

Solicitors for the Respondent: Australian Government Solicitor

[2017] AATA 1743

18 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Date(s) of hearing:	29 August 2017
Advocate for the Applicant: Solicitors for the Applicant:	Ms Jill Vidler Beena Rezaee Legal & Migration
Advocate for the Respondent:	Mr David Brown
Solicitors for the Respondent:	Australian Government Solicitor