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

[2024] AATA 2556

Rahmati and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 2556 (19 July 2024)

Division:GENERAL DIVISION

File Number:          2023/7437

Re:Abdul Razaq Rahmati

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:19 July 2024

Place:Hobart

The Tribunal decides:

1.That the prohibition in s 24(3) of the Australian Citizenship Act 2007 does not apply to the Applicant; and

2.That at the time of this decision the Applicant does not satisfy s 21(2)(h) of that Act.

As a consequence, under s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the reviewable decision to refuse citizenship by conferral is affirmed.

..............................[signed].................................

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – applicant is a citizen of Islamic Emirate of Afghanistan – applicant arrived in Australia as an irregular maritime arrival – applicant gave false information on name and date of birth – applicant also gave false information on family composition – applicant granted permanent visa – applicant applied for citizenship by conferral – supplied incorrect information about immediate family and bogus Taskera – applicant subsequently provided genuine Taskera but based on incorrect information – explanations as to conduct – applicant provided third Taskera – whether Tribunal satisfied of identity – Tribunal is satisfied – whether Tribunal satisfied applicant of good character at time of decision – testimonials – evidence of employment and community contribution – whether s 42D remittal appropriate – Tribunal not satisfied given proximity of incorrect information that good character requirement met – prohibition in Act not applicable – however decision not to grant citizenship is affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Migration Act 1958 (Cth)

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
GJDB and Minister for Immigration, Citizenship and Multicultural Affairs; Re: [2023] AATA 3245

Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422

Secondary Materials

Revised Citizenship Procedural Instructions (CPIs) – CPI 15 – Assessing Good Character under the Citizenship Act – CPI 16 – Assessing Identity under the Citizenship Act – Department of Home Affairs

REASONS FOR DECISION

Senior Member D. J. Morris

19 July 2024

1. On 15 September 2023, a delegate of the Respondent made a decision under s 24(1) of the Australian Citizenship Act 2007 (‘the Act’) to refuse the Applicant’s application for Australian citizenship by conferral. The delegate refused Mr Rahmati’s application on the basis that the delegate was not satisfied of his identity, and was therefore prohibited from approving the grant of citizenship. The delegate separately found, under s 21(2)(h) of the Act, that the Applicant was not of good character.

2. Section 54(1)(b) of the Act allows a person to seek review by this Tribunal of decisions under ss 24 and 21. The Applicant sought review on 3 October 2023.

   HEARING

3. A hearing was held on 18 and 19 June 2024 by video, under s 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). Mr Shaukat Akbari of Azlan Lawyers represented the Applicant. The Respondent was represented by Ms Tegan Weir of counsel, instructed by Ms Claudia Crawley of HWL Ebsworth Lawyers.

4. The Applicant gave evidence and was cross-examined. Other witnesses were called by the Applicant and gave evidence: Ms Fariba Rahmati (relative); Mr Farhad Hussainee (half-brother); Mr Jarrod Linley (friend); Mr Abdul Marin Bahadoori (friend); and Mr Shafi Khish (friend). The Tribunal appreciates the assistance of interpreters in the Dari and Hazaragi languages for some of the witnesses.

5. The Tribunal had regard to a Statement of Facts, Issues and Contentions of the Applicant, lodged on 5 April 2024, and a Statement of Facts, Issues and Contentions of the Respondent, lodged on 13 May 2024. Other papers were admitted into evidence and are in the schedule of exhibits annexed to these reasons.

   THE LEGISLATIVE SCHEME

6. The Tribunal’s task in this matter is to decide whether Mr Rahmati’s application for Australian citizenship by conferral should fail on the basis that his identity is not satisfied. Separately, the Tribunal must decide whether he now satisfies the requirement of being of good character. If the Applicant succeeds in these two aspects, the matter would be remitted to the Respondent for a delegate to complete assessment of the other requirements for Australian citizenship by conferral.

   Identity

7. President Kyrou in Re GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245 (‘GJDB’) said the following at [8]-[12]:

   8. The word ‘identity’ is not defined in the Act and it does not have a single meaning, as its meaning can vary according to the statutory or other context in which it is used. In some contexts, ‘identity’ may have a broad meaning which incorporates a person’s views of themselves and their cultural attributes. In other contexts, ‘identity’ may have a narrower meaning which focuses exclusively upon physical traits – such as those found in DNA or fingerprints – that are unique to each individual.
   9. Dictionary definitions of ‘identity’ tend to incorporate a spectrum of meanings, including those referred to above. For example, one of the definitions of ‘identity’ in the Oxford English Dictionary is: ‘The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality.’ All but the last two words in that definition may be seen to reflect the concept of permanent sameness, whereas the last two words may be seen to reflect a broader concept of outward expression of a person’s character.
   10. In my opinion, s 24(3) of the Act uses the word ‘identity’ in the sense that the person seeking citizenship is the human being that they claim to be. Identity involves a continuum: a person remains the same human being from the moment they are born until the moment they die. In between these times, many attributes associated with them – such as their name, physical appearance (such as their height, weight and the colour of their hair), personality, gender, nationality, languages spoken, manner of speaking and religion – and their life experiences and fortunes may change, but they will remain the same human being. Whilst each of these matters may assist in ascertaining a person’s identity, it is of fundamental importance that, for the purposes of s 24(3), they are not confused with, or treated as equivalent to, a person’s identity.
   11. The above analysis is consistent with the observations of Mortimer CJ in BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs. Her Honour stated that the concept of identity for the purposes of s 24(3) of the Act ‘is about an assessment of whether the repository of the power to confer citizenship is satisfied the human being who is the individual applying for citizenship is the person they say they are, with the relevant background to their citizenship application they rely on, and not a different human being with a different background which may affect their citizenship application.’ She added that it is erroneous to conflate a person’s names with the concept of identity.
   12. Section 24(3) of the Act does not require the Minister – or the Tribunal in performing its review function – to exercise a discretion. Instead, it requires that the Minister make an evaluative judgment and form an opinion about a person’s identity. If the Minister is satisfied of a person’s identity, the Minister is not required by s 24(3) to refuse to approve them becoming an Australian citizen. That section prompts a binary choice; the Minister is either satisfied of the applicant’s identity or the Minister is not.

   (Footnotes omitted)

8. I respectfully agree with these conclusions of the learned President. The Revised Citizenship Procedural Instructions (‘CPI’) are issued by the Department for the policy guidance of officers. They are not a legislative instrument, and the Tribunal is not bound by them. Nonetheless they provide useful guidance in coming to the evaluative judgment referred to by the learned President above.

9. CPI 16 refers to the ‘three pillars’ of identity. They are set out at paragraph 5:

   Biometrics – a measurable characteristic that is unique to a person such as fingerprints or face.

   Documents – reliable and secure documents as defined by the Security Standards for Proof-of-Identity Documents. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

   Life story – an account of the events that happened to a person during their lifetime.

10. The Tribunal must make a contemporary assessment as to whether, standing in the shoes of the Minister, it is satisfied (as at the date of this decision) of the identity of Mr Rahmati.

    ‘Good character’

11. Separately, the delegate decided that Mr Rahmati was not of good character at the time of the assessment of his application. Ms Weir confirmed at the hearing that these were the two bases for the refusal, so the Tribunal must consider whether the Applicant now meets s 21(2)(h) of the Act, that is, can I be satisfied Mr Rahmati is of good character at the time of the Tribunal’s decision on the application.

    CONTENTIONS

    The Applicant

12. The Applicant’s legal representatives submitted the following. The Applicant was born in 1982 in Behsud Province in Afghanistan. He is of Hazara ethnicity and Shi’a Muslim Faith. Mr Akbari submitted that the Applicant’s father is deceased, and his mother and stepfather reside in Afghanistan (but see below at 31). He has two half-sisters and two half-brothers in Afghanistan. He also has a half-brother, Mr Farhad Hussainee, who resides in Australia and gave evidence. The Applicant is married with two young children. His wife and children live in Australia and are Australian citizens.

13. Mr Akbari said that the Applicant struggles with dates. He said there are a number of contributing factors, including growing up in a time of conflict, minimal education and a cultural disregard for dates. He said that all dates Mr Rahmati provided to the Respondent’s Department have been approximations, with the exception of his year of birth as this has been recorded on his Taskera.

14. The Applicant arrived in Australia in July 2010 as an irregular maritime arrival. He applied for a subclass 866 visa, which was granted in 2011. In his application for the subclass 866 visa, the Applicant stated his name to be Abdul Razaq Rahmati, and his date of birth to be 5 May 1993. He said he did not have any siblings in Australia, which at the time was true, because his half-brother did not arrive in this country until March 2013.

15. Mr Akbari submitted that the Applicant now admits that his name is Abdul Khaliq Rahmati. He admits providing incorrect information about his date of birth and family composition, including the details of the relationship to his wife and daughter. Mr Akbari said that the Applicant contrived these aspects of his life story because he followed advice of people smugglers and others being held in detention at the same time as him.

16. Mr Akbari submitted that the Applicant has held three Taskeras in his lifetime. The first he provided to the Department was a Taskera issued on 26 August 2017 (TD, p 219). He produced that Taskera when he applied for Australian citizenship. Mr Akbari said that this document was later found to be non-genuine.

17. In 2019, the Applicant produced a Taskera issued on 23 February 2019 (TD, p 224-226).  Mr Rahmati subsequently produced a Taskera which was issued on 2 March 2003 (Exhibit A17).

    The Respondent

18. The Respondent submitted that the Applicant claimed to be a person born in Afghanistan in 1982 but that his date of birth remains unclear.

19. The Respondent noted Mr Rahmati was granted a subclass 866 visa in 2011 and that he is currently the holder of a Resident Return (subclass 155) visa.

20. In his application for citizenship lodged in 2015, the Applicant stated his date of birth to be 5 May 1993 and said he was Abdul Razaq Rahmati and had not been known by any other names.

21. In June and August 2017, the Respondent’s Department sent requests for information to the Applicant seeking material that supported his claimed identity before arriving in Australia. He provided information about his family composition including that he had a brother named Abdul Khaliq Rahmati who was deceased.

22. In July 2023, the Respondent’s Department wrote to the Applicant inviting him to respond to adverse information in relation to his citizenship application. The Respondent advised Mr Rahmati that the Department believed his real name might be Abdul Khaliq Rahmati, born in 1988, which was the name the Applicant had consistently declared for his brother whom he declared had died.

23. The Department also noted that the Applicant had an undeclared brother, Farhad Hussainee, with whom the Applicant had shared a number of residences, and that this brother in his own submissions to the Department had declared a brother named Abdul Khaleq Hussainee, with a birth date of 31 December 1992.

24. The Department noted that the Applicant had previously declared that his spouse had been married to his older brother, Abdul Khaliq, and that they had a child (who will be called ‘DAR’) when they arrived in Australia, but DNA testing had indicated that the Applicant and his spouse are the biological parents of DAR, suggesting that the Applicant is in fact Abdul Khaliq.

25. Finally, the Department advised that inquiries with the Afghanistan issuing authority for Taskeras had resulted in a conclusion that the Taskera the Applicant had provided, in the name of Abdul Razaq born on 5 May 1993, was a non-genuine document.

26. The Department noted that in August 2023 Mr Rahmati had engaged new solicitors, Azlan Lawyers, and through them he provided a large number of documents including character references, local rate notices and certain certified Afghanistan documents, including Taskeras and passports.

27. The Applicant, through his solicitors, told the Department that at birth his name was Abdul Khaliq, and he did not have a last name. His father, Abdul Razaq, was in the army and was killed when the Applicant was young. His mother then married the Applicant’s paternal uncle. When he came to Australia, he adopted his father’s name, Abdul Razaq, and the family name Rahmati. He said that his aliases included: Abdul Khaleq Hussainee (DOB 31 December 1992) and Abdul Khaliq Rahmati (DOB 31 December 1988).

28. The Applicant also provided a Taskera number 354654 in the name Abdul Khaliq which has a date of birth as ‘20 years old in 2002/2003’.

    ORAL EVIDENCE

    The Applicant

29. The Applicant said his real name is Abdul Khaliq Rahmati and that he replaced his middle name with his father’s name, as the name he uses in Australia.  He said his date of birth was 1982 or 1983, and he learnt this in 2002 when he was aged 20. He agreed that he gave a date of birth of 5 May 1993 when he arrived in Australia.

30. Mr Akbari asked why the Applicant gave a different date of birth. He responded: “When I came to Australia, people smugglers told us to give our age as a minor and not to give a real name or age. Because of fear of being sent back to Afghanistan, I gave the wrong information. When I came to Australia, I got to know law. I realized my mistake and have been suffering for not disclosing the truth. I have always regretted the fact that I gave wrong information. I never had a real date of birth – we didn’t celebrate birthdays. I am a decent person. I have never had an issue with law and order. One lie I told to Immigration because of a fear of being sent back.”

31. Mr Rahmati said he came by boat from Afghanistan. He fled that country because of a lack of security, to seek asylum and have a future for himself and his family. He said his mother and his ‘uncle who we call father’ are no longer in Afghanistan, having fled to Iran.

32. Mr Rahmati told the Tribunal he works as a painter in the construction industry. He started work in that area in 2012 or 2013 and how has his own business. He estimated he was unemployed for about five or six months when he first arrived in Australia before he procured a job in a factory, and has been working ever since.

33. Mr Akbari asked about the Applicant’s education. He said that, because of the war, he did not have an opportunity to go to school. He said he has self-educated to be able to read Farsi and English, but had no formal education.

34. The Applicant said his father, a soldier, was martyred when he was not yet a year old. His mother then married his uncle. When the Taliban took over government in Afghanistan, his mother and stepfather left the country and now reside in Iran. He said he was the only child of his father and mother; his mother subsequently had five more children with his stepfather.

35. The Applicant said his half-brother Abdul Hamid subsequently changed his name to Farhad Hussainee; he did not know why but he did know that his half-brother informed the Department.

36. Mr Rahmati said that he purchased his own house around two years ago, where he lives with his wife, Ms FR, and their two children, their daughter DAR who is 14 and their son SOR, who is aged 4. He told the Tribunal he and Ms FR have been married for about 15 or 16 years, having married in Afghanistan. DAR was born in Afghanistan and SOR was born in Australia. Mr Rahmati told the Tribunal that Ms FR works as a dental assistant, having completed her training certificate last year.

37. In terms of his business, Mr Rahmati said he and his half-brother are mainly the workforce, but he employs others depending on the fluctuation in work.

38. The Applicant said he was born at home, not in a hospital. He has never been issued with a school certificate or attendance record. He said the only identity document he has from Afghanistan is a Taskera obtained in 2002 or 2003. He said he was around 20 years old at that time, which he judged from notes his uncle had taken, which he used to obtain the Taskera.

39. Mr Rahmati said he submitted a Taskera to the Department which he thinks was not genuine. He said his mother obtained it for him around 2016 or 2017. In 2019 he went to the Embassy of Afghanistan in Canberra and obtained another Taskera. He used the name Abdul Razaq because that was the name on his Australian visa.

40. Mr Rahmati said he attends the Mosque at Dandenong and he and his family have been active in the Hazara community since he arrived in Australia, involved in attending meetings, cooking, cleaning and helping to manage parking for community events.

41. In response to Mr Akbari’s query, the Applicant said he had never been to Court in Australia. He provides monthly financial assistance to his mother, stepfather and siblings in Iran, which he has been doing for around 20 years.

42. Under cross-examination Mr Rahmati said that in Afghanistan the surname is not used, and since coming to Australia he has used the surname Rahmati.

43. In response to direct questions from the Tribunal, the Applicant confirmed he obtained a Taskera in 2002 or 2003 with his uncle. He said it was held at home among other family documents. He said he provided this Taskera to the Respondent’s Department in 2023.

44. In respect of the 2017 Taskera, the Applicant said his mother obtained it for him in Afghanistan after he explained the situation to her. He said he told her the name he used and that she ‘should get me a date of birth.’ He said that because he had used wrong details on arrival, he asked his mother to get a Taskera matching them. He said the fact of the 2003 Taskera did not come up in conversation.

45. In terms of the 2019 Taskera, the Applicant said he went to the Embassy in Canberra and provided details including a name and his driver licence but “obviously, I did not use the correct details.” He said that the Embassy sent the details to Afghanistan and his mother and uncle attended the relevant registry in Kabul.

1. Mr Rahmati said he picked the date 5 May 1993 at random as a date of birth when he first arrived in Australia, because people smugglers emphasised that he had to give a ‘young’ age. He said that he lied about his wife being his brother’s widow and SR being his niece, because otherwise the discrepancies in age would become obvious.

2. In 2023, after the Department asked him to clarify his identity, Mr Rahmati asked his mother to send the 2003 Taskera. The Tribunal asked the Applicant if he knew his mother had the document in the house. He responded, “I was never sure. I was aware the Taskera was there. I asked my mother specifically to find it, so I could give the correct details.”

3. Mr Rahmati said the Department was undertaking DNA testing in relation to DAR and so he decided to declare that Ms FR and he were both the biological parents of DAR; he said he did so before the DNA test result came back to the Department because he knew it would be proven to be so.

4. The Applicant said that people smugglers reinforced that he should not tell the truth about his age or name, and others in detention at the time told him not to provide genuine information. He said, “I was under stress and feeling scared. Looking back, it should have been straightforward. My family was not happy for me not disclosing.”

   Other witnesses

5. Mr Farhad Hussainee confirmed that he was known as Abdul Hamid before he came to Australia. He said that the Applicant is his half-brother and also his paternal uncle’s son, that they had the same mother but different fathers.

6. He confirmed the same family make up as had been given by the Applicant, and told the Tribunal he decided to change his name when he got to Australia to use his grandfather’s name as his surname.

7. Ms Fariba Rahmati gave evidence. She said she wanted to support the Applicant. She knew he had given a false name and an incorrect date of birth. She said she has known him since childhood; her grandmother is a sister of the Applicant’s grandfather.

8. She confirmed that the Applicant’s father was killed when the Applicant was aged about one year and that his mother then remarried. She confirmed the names of the Applicant’s half-brothers and half-sisters.

9. Ms Rahmati said she sees the Applicant most weekends at family gatherings. She regards him as a good person and a hard worker. When asked if she still supported the Applicant’s application for Australian citizenship, she said, “Yes. It might have been that he panicked in the moment of arriving. Now he has provided accurate information and admitted his mistake. He has rectified that information.”

10. Mr Abdul Matin Bahadoori gave evidence. He said he had known the Applicant for about six years. He was aware that Mr Rahmati had provided incorrect information to the Department about his name. He said: “I know him as a good person. He is an honest guy. You know the character of a person when you see them often, and I have never seen him do anything illegal.”

11. Mr Jarrod Linley gave evidence. He is a builder and told the Tribunal he had often used the Applicant to undertake painting work and had done so for about eight or nine years. Mr Linley said he knows the Applicant as Abdul Rahmati but was aware the Department had questions about his name. Mr Linley said the Applicant is a very good worker and he happily leaves him on site to work with customers.

12. Mr Shafi Khish gave evidence. He owns a snooker club and knows the Applicant through this business. He said he was happy to support the Applicant because he knows him as a person of good character and knows his family. He said he was aware that there was a misunderstanding over the Applicant’s name, but was not sure about any other discrepancies, because his last detailed conversation on this topic was more than a year ago.

    CONSIDERATION

    Identity

13. In terms of the three pillars set out in CPI 16, the Tribunal is satisfied that the Applicant meets the ‘biometric’ pillar. There is no evidence before me that he has used photographs of other people in any document submitted to the Department.

14. In terms of the ‘documents’ pillar, the Tribunal notes the concessions of the Applicant that the Taskera issued on 26 August 2017 (TD, p 81) is not a genuine document. That is admitted in the written submissions of his legal representatives, and he confirmed that in his oral evidence.

15. In respect of the Taskera issued on 23 February 2019 (TD p 97) the Tribunal is satisfied that this document is a bogus document in the sense of definition set out in s 5(1)(c) of the Migration Act 1958 (which definition is applied by s 3 of the Act) as it was obtained because of a false or misleading statement. This is no reflection on the Afghanistan Embassy, because it processed Mr Rahmati’s application based on information he provided to them, and the Applicant told the Tribunal he had told his mother, who was to attend the registry in Kabul in relation to the issuance of the Taskera, that the name must match that which he used to obtain his Australian visa. So, the Tribunal is satisfied that the 2019 Taskera is ‘bogus’, in the sense that it carries no weight in support of the identity of the Applicant, but not that it is not a genuine document issued by a competent authority.

16. The third Taskera, which the Applicant provided to the Respondent’s Department in 2023, was issued on 2 March 2003 (Exhibit A16). The Tribunal is satisfied that this document supports the identity of the Applicant. The photograph affixed to it, and stamped over, depicts a person who is identifiably the same person as Mr Rahmati but of an age of around 20 years old, which accords with his evidence of when it was obtained. The other data information in the certified translation about the Applicant’s father and grandfather accords with his other evidence, and that of Ms Fariba Rahmati. The Tribunal finds this 2003 Taskera is proved.

17. In respect of the ‘Life story’ pillar, there have been discrepancies in the Applicant’s story. The Tribunal accepts that he took the advice of people smugglers in order to disguise his true age on the basis that it would be more difficult for Australia not to accept a minor. The Tribunal also accepts his evidence that he randomly plucked a putative date of birth out of the air. The Tribunal notes that, because of this falsehood, the Applicant decided he must also lie about his wife, Ms FR, and the parentage of his daughter, DAR, otherwise he thought the discrepancy in the age on his visa would be revealed.

18. The Tribunal accepts that Mr Rahmati was fearful about the possibility of being returned to Afghanistan, which motivated the first lie and then the compounding falsehoods.  However, the Tribunal also notes that the Applicant has now conceded where he has provided incorrect information and considers that his current narrative about his childhood and life before coming to Australia is consistent. His life since arriving in Australia can be objectively verified by local information.

19. Ms Fariba Rahmati provided a statutory declaration and gave oral evidence. She is a cousin of the Applicant through her grandmother being a sister of his grandfather. She is an Australian citizen. I found her evidence candid and consistent with other submissions made by Mr Rahmati and his half-brother. She has known the Applicant since he was born, and her evidence about the death of his father and his mother’s remarriage was first-hand. She maintains close links with the Applicant and his family. I consider her evidence carries significant weight.

20. The Applicant has also provided other Australian-sourced documents in support of his identity, including the birth certificate of his son (ST, p 114) and a Victorian city rates notice (ST, p 119). I am satisfied that he has been known as the same person throughout his time in Australia. However, while these Australian-sourced documents support such a finding, they do not provide an unbroken chain from the Applicant’s birth or early life.

21. However, taking all the evidence into account, and following the reasoning in GDJB, the Tribunal has formed an opinion about the identity of the Applicant and is satisfied that he is Abdul Khaliq (now) Rahmati, and that he was born on a day in 1982 or 1983 in Behsud, Afghanistan. As a consequence, the Tribunal finds that the prohibition in s 24(3) of the Act does not apply to the Applicant.

    Good character

22. The second matter the Tribunal must deal with is whether Mr Rahmati is of good character at the time of this decision. The Applicant drew the Tribunal’s attention to the decision of the Full Court of the Federal Court of Australia in Irving v Minister of State for Immigration,Local Government and Ethnic Affairs (1986) 68 FCR 422 (Davies, Lee and R. D. Nicholson JJ). Lee J said:

    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 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. (See: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 117 FLR 455 per Miles CJ at 459-460; Plato Films Ltd v Speidel [1961] AC 1090 per Ld Radcliffe at 1128-1129, Ld Denning at 1138.) 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, (see: In Re Davis [1947] HCA 53; (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at 461). Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

23. More recently, O’Bryan J said in BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 (‘BOY19’), at [51] said:

    The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 348 per Mason CJ and 380-382 per Toohey and Gaudron JJ). Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.

24. Mr Akbari also drew the Tribunal’s attention to another remark by Justice O’Bryan in BOY19 where His Honour said, approvingly of the conclusions in this respect in the Tribunal of the learned Member, Mr West, at [72]:

    The Member’s finding correctly reflects the view that honesty and dishonesty are not moral absolutes, and the circumstance in which a lie is told has a substantial bearing upon any perceived moral deficiency. In the present case, the Member found that the applicant lied about his place of birth in circumstances where he feared for his life, a fear that was found to be justified and that entitled the applicant to protection in Australia. That lie was repeated on a number of occasions in order to maintain the original lie, and was therefore perpetuated for the same reason. The moral deficiency (if any) associated with a lie that is told by a person believing that the lie is necessary in order to save the person from abhorrent and unjustified threats to their safety is entirely different to the moral deficiency associated with a lie that is told for the purposes of personal enrichment.

25. There are many aspects of the Applicant’s conduct in Australia which support a conclusion that he is of good character. He has been productively employed consistently from a few months after he arrived in this country. He now runs his own small business. A builder with a business relationship spanning almost a decade gave strong evidence about how Mr Rahmati is respected and trusted in the industry, for undertaking quality work and having a good relationship with customers. He said he trusted him on work sites to complete his tasks. Other witnesses gave evidence about his community-mindedness and voluntary work at his local Mosque. Mr Rahmati has purchased a house, which he is paying off. His wife, who is now an Australian citizen (ST, pp 121-122), has completed a qualification and is now employed in an important profession. Both of his children are Australian citizens (ST, p 120 and ST, p 114). The Tribunal without reservation considers his achievements in this country are impressive, and contribute to the greater good of our society.

26. The Tribunal accepts that, having arrived in Australia after a perilous journey on the high seas, the Applicant gave false information to officers of the Respondent’s Department. He has openly admitted that. The Tribunal places little weight on such statements when they are corrected at an early stage, because as Justice O’Bryan remarks, the ‘moral deficiency’ in telling lies about such things for fear of being repatriated to a war-torn and dangerous country is entirely different from a lie told for personal advancement. It is relevant that, in the granting of the subclass 866 visa, Australia has accepted the Applicant is owed protection, in an international treaty-related sense, so it follows that the Respondent accepts he would be exposed to harm if he were to be returned there (not that that is in prospect).

27. However, having made these representations, the Applicant did not move to swiftly correct them. In fact, he compounded them by claiming that Ms FR was the widow of a fictional older brother and that his daughter, DAR, was his niece, whom he adopted when he married Ms FR. In addition, having received correspondence from the Respondent’s Department questioning the first Taskera and other details he provided, he went about obtaining a second Taskera, but instructed his mother to obtain one in the name he was using, because that was the name he used (improperly) to obtain his first visa. He told the Tribunal that when he was aware that the Department had decided to obtain a DNA test in relation to DAR, he decided to confess that she was in fact his biological daughter, because ‘they would find out anyway.’

28. The Tribunal accepts the evidence of those who gave testimonials and oral evidence that Mr Rahmati is a man of good repute, and such testimony is an ingredient in coming to a conclusion as to whether a person is of good character.

29. It is a truism to observe that a person may have committed a terrible crime, but may have since redeemed him or herself by conduct and may, after the passage of time, be found to be of good character. Equally, a person may have built up a good reputation, but may have done acts which are dishonest, but which are not publicly known. Such a person may be found not to be of good character. Mr Rahmati does not fit within the first of these categories, but he does into the second.

30. The written submissions of the Applicant accept that ‘he has been providing incorrect information to the Department of Home Affairs for ‘a number of years’ and further that Mr Rahmati ‘had ample opportunities to correct …records by providing the correct information to the Department.’  Mr Akbari submits that the reason the Applicant did not correct the information in full until late in 2023 was because he was ‘discouraged by the tough immigration policies’. Whatever the motivation, it is not a signal of good character that the Applicant provided to the Respondent’s Department: wrong information about his date of birth; wrong information about his family composition; wrong information about his name; wrong information that his wife had previously been married to a brother; wrong information about the parentage of his daughter; a fake Taskera; and a Taskera which was authentic but based on misleading information he had provided.

31. Because this provision of misinformation occurred over a spread of years before it was rectified and because the provision of the ‘third’ Taskera, which I have found to be genuine evidence of the Applicant’s identity, to the Department did not happen until 2023, the redemption of his actions so recently, even though he has now ‘come clean’ by providing what I regard as a genuine document, undermines me being satisfied that he is now of good character.

32. Mr Akbari submitted that the Tribunal could make a decision under s 42D of the AAT Act to return the matter to the Respondent’s Department with findings, and this submission was based, in part, on the fact that Mr Rahmati lodged his application for Australian citizenship by conferral in 2015, nine years ago.

33. I have some sympathy with the Applicant in terms of the lengthy period it took between his April 2015 citizenship application, and the reviewable decision of December 2023. But many of the reasons for that delay have been because Mr Rahmati’s own provision of information was incorrect, and elements of that information were blatantly untrue. This required correspondence back and forth between the Department and the Applicant, and then the Department to undertake its own independent inquiries, one of which uncovered the bogus nature of the first Taskera submitted. So the blame for the delay cannot all be sheeted home to the Department. For completeness, I reject the submission for a decision under s 42D.

34. In summary, the Tribunal is satisfied of the Applicant’s identity and decides that the prohibition in s 24 of the Act is not applicable to Mr Rahmati. However, because it has also found that he does not currently satisfy s 21(2)(h) of the Act, as I am not satisfied that he satisfies the good character requirement at this time. The correct and preferable decision is that his application for Australian citizenship conferral is refused.

35. But it would be wrong to interpret this finding as an indelible stain on Mr Rahmati. In particular, the Applicant should not interpret this decision as meaning his quest for Australian citizenship is futile. He holds a permanent visa, which is not jeopardised by these findings. He has many objectively good qualities and I consider him a positive contributor, with his family, to Australia’s society. This achievement is more creditworthy given the unsettled and traumatic society in his country of birth, from which he fled. The Tribunal notes it is open to Mr Rahmati to lodge a fresh citizenship application. If he does so, he must provide accurate and completely disclosive information to the Department in support of any such application.

    DECISION

36. The Tribunal decides:

    (1)that the prohibition in s 24(3) of the Act does not apply to the Applicant; and

    (2)that at the time of this decision the Applicant does not satisfy s 21(2)(h) of the Act.

    As a consequence, under s 43(1)(a) of the AAT Act, the reviewable decision is affirmed.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................................[sgn]......................................

Associate

Dated: 19 July 2024

Date(s) of hearing:	18 and 19 June 2024
Counsel for the Applicant:	Mr Shakut Ali Akbari
Solicitors for the Applicant:	Azlan Lawyers
Counsel for the Respondent:	Ms Tegan Weir
Solicitors for the Respondent:	HWL Ebsworth Lawyers

ANNEXURE TO REASONS

Schedule of exhibits

Section 37 (TD) documents  Exhibit R1

Section 38AA (ST) documents  Exhibit R2

Citizenship Policy, dated 1 January 2022  Exhibit R3

Statutory declaration – Mr A. M. Bahadoori  Exhibit A1

Statutory declaration – Applicant (no convictions)  Exhibit A2

Statutory declaration – Applicant  Exhibit A3

Character reference, Hazara Australia community  Exhibit A4

Council rates notice of Applicant  Exhibit A5

Passports of family members of Applicant  Exhibit A6

Statutory declaration – Farhad Hussainee, 23 August 2023            Exhibit A7

Statutory declaration – Farhad Hussainee, 30 October 2023          Exhibit A8

Statutory declaration of FR  Exhibit A9

Statutory declaration – Mr Jarrod Linley  Exhibit A10

Statutory declaration – Mr Shafi Khish  Exhibit A11

Mortgage document of Applicant  Exhibit A12

Bundle of various documents of Applicant  Exhibit A13

Affidavit of Hussain Ali (translation)  Exhibit A14

Application for FR  Exhibit A15

Taskera of Abdul Hamid (with translation)  Exhibit A16

Taskera of Abdul Khaliq (with translation)  Exhibit A17

Taskera of Eid Mohammed (with translation)  Exhibit A18

Taskera of Khatera Rahmati (with translation)  Exhibit A19

Taskera of Roya Rahmati (with translation)  Exhibit A20

Taskera of Zahra Rahmati (with translation)  Exhibit A21

Translation of Will of Hussain Ali  Exhibit A22

Passport and citizenship documents for FR, DAR and SOR           Exhibit A24