Rahmati and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 222
•14 February 2022
Rahmati and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 222 (14 February 2022)
Division:GENERAL DIVISION
File Number(s): 2020/8323
Re:Mir Hussain Rahmati
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date:14 February 2022
Place:Brisbane
The Reviewable Decision, dated 8 December 2020, is affirmed.
..............................[SGD].................................
Member R Maguire
Catchwords
CITIZENSHIP – citizenship by conferral – character test – whether Applicant is of good character – dishonest – misleading information – untruthful information – using false name – declaring under false name – Applicant not of good character – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
Statutory Declarations Act 1959 (Cth)Cases
1813689 (Refugee) AATA 348
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
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
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR187
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634Secondary Materials
Australian Citizenship Policy
REASONS FOR DECISION
Member R Maguire
14 February 2022
The Applicant seeks a review of a decision[1] by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Department) made on 8 December 2020 to refuse the Applicant’s application for citizenship by conferral under section 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) on the ground that the Applicant did not meet section 21(2)(h) of the Act which requires the Minister to be satisfied that the Applicant is of good character at the ‘time of the Minister’s decision on the application’.
[1] Exhibit T1, T documents T2, pages 13 - 23.
ISSUE FOR DETERMINATION
The issue for determination in this application, is whether the Applicant is a person of good character for the purposes of section 21(2)(h) of the Act at the time of this decision.
THE LAW
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Section 24(1) of the Act requires that if a person makes an application under section 21, the Minister (or a person delegated by the Minister) must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 21(2) sets out the general eligibility criteria for an applicant who is 18 years or older, and a permanent resident. Section 21(2)(h) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the applicant ‘is of good character at the time of the Minister’s decision’.
Good Character
The term ‘good character’ is not defined in the Act, however, guidance for decision-makers exists in the Australian Citizenship Policy Statement[2] and the Citizenship Procedural Instructions (CPIs) in particular CPI 15 which together, for present purposes represent government policy (the policy).
[2] Annexure A to the Respondent's Statement of Facts Issues and Contentions (SFIC).
CPI 15 states the following at paragraph 4.1:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
CPI 15 provides at paragraph 4.4, that is a general proposition, a person of good character would:
· 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 practice deception or fraud in dealings with the Australian Government, or other organisations, for example
o intentionally providing false personal information (such as fraudulent work experience or qualification documents) or
o other material deception during visa and citizenship application;
o evading immigration control of the border or living unlawfully in the community after the visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
o knowingly entering into a bogus marriage or pretending to be a defector partner of another person;
o concealing criminal conviction;
o fraud against the Commonwealth such as tax fraud or Centrelink fraud;
o giving false names and/or addresses to the 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 the 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 antisocial 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 in Australia.
The principles set out above are to be considered in the light of the facts of the particular case, and should not be applied rigidly or inflexibly. It is also necessary to consider information provided by the Applicant regarding his or her family life, for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, 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 wrongdoing and the time that has elapsed since the wrongdoing. Some factors may support an adverse finding, while others may support a positive finding about a person’s character.
Factors to be taken into account under paragraph 4.7 of CPI 15 include instances where an applicant has a criminal record including the commission of a “serious” offence, examples of which are offered:
·crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death);
·war crimes, crimes against humanity, genocide;
·crimes against children;
·drug trafficking (including importation and supply);
·people smuggling;
·fraud (including identity fraud);
·harassment or stalking;
·terrorist activity;
·extortion;
·illegal pornography, including child pornography;
·breaches of immigration law, including those that resulted in removal or deportation from Australia or another country;
·offences incurring prison sentences of 12 months or more.
In the Full Federal Court case of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; at 431 – 432 Lee J stated in his separate reasons:
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 the 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 opinion... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
In that case, the Court was constituted by Davies, Lee, and RD Nicholson JJ. Each of the judges gave separate reasons, concurring in the result. Nicholson J expressly concurred with the reasons of Davies J, and neither Davies J, nor Nicholson J expressed concurrence with the judgement of Lee J.
The question whether a person is or is not ’of good character’ is primarily an issue of fact.[3] Davies J remarked (at 427 – 428):
The drawing of a conclusion by a decision maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgement. There are no precise parameters which distinguish “good character” from “bad character”. Although in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision…
[3] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 424 per Davies J (with whom RD Nicholson J concurred).
In deciding that fact, the Tribunal ‘was entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the [relevant] act’.[4]
[4] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69 per Bowen CJ and Deane J.
In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court[5] said; at 197:
The words “good character” in this section should, as Lee J pointed out in Irving, (at 431 – 432), be understood as “a reference to the enduring moral qualities of a person”. Conduct may make those qualities visible, but it should never be confused with them. In each case having had regard to the conduct, the Minister or other decision maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character.
[5] Per Burchett, Branson, and Tamberlin JJ.
The decision of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 makes clear that in considering the application of policy, the Tribunal must not lose sight of its duty. Brennan J said at 642:
The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.
Neither party has submitted that there are cogent reasons so as to warrant a departure from the Policy in this review. Nevertheless, the Tribunal bears in mind that the Policy is not a binding checklist, and that decision-makers need to look at the merits of each case.
It is convenient at this point to set out section 11 of the Statutory Declarations Act 1959 (Cth):
11 False declarations
A person must not intentionally make a false statement in a
statutory declaration.
Penalty: Imprisonment for 4 years.
It is also convenient to set out section 234(1) of the Migration Act 1958 (Cth):
234 False documents and false or misleading information etc. relating to non-citizens
(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person’s knowledge, is false or misleading in a material particular; or
(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
(2) A person shall not transfer or part with possession of a document:
(a) with intent that the document be used to help a person, being a person not entitled to use it, to gain entry, or to remain in, Australia or to be immigration cleared; or
(b) where the person has reason to suspect that the document may be so used.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
It is also convenient to set out section 50 of the Australian Citizenship Act 2007 (Cth):
50 False statements or representations
(1) A person commits an offence if:
(a) the person makes, or causes or permits to be made, a representation or statement; and
(b) the person does so knowing that the representation or statement is false or misleading in a material particular; and
(c) the person does so for a purpose of or in relation to this Act.
Penalty: Imprisonment for 12 months.
(2) A person commits an offence if:
(a) the person conceals, or causes or permits to be concealed, a material circumstance; and
(b) the person does so for a purpose of or in relation to this Act.
Penalty: Imprisonment for 12 months.
BACKGROUND
The Applicant is a male citizen of Afghanistan, who first arrived in Australia on 1 February 2010 as an unauthorised maritime arrival and without formal identity documents. At an “entry” interview on 24 February 2010, he falsely identified himself as Mohammed Hussain Rezae, and did not disclose that he used any other name, and lied saying he was been born in 1983[6]. He falsely stated his parents were deceased[7], and lied about not having any relatives in Australia, or who had applied for visas to Australia[8]. He falsely claimed to have two sons[9].
[6] Exhibit T1, T28, page 421.
[7] Ibid 425.
[8] Ibid 426-7.
[9] Ibid 424.
He was granted a permanent residency visa via a Protection (subclass 866) visa on 8 December 2010. He is currently the holder of a Resident Return (subclass 155) visa issued on 20 March 2017[10].
[10] Exhibit T1, T2 page 17.
On 2 April 2010 the Applicant completed a Form 80 declaration[11] for the purposes of his Protection visa application in the false name Mohammed Hussain Rezae which contained a warning as follows:
Warning: Giving false or misleading information is a serious offence.
[11] Exhibit T1, T28 pages 483 – 499.
In this Form 80, the Applicant repeated his lies about his deceased parents, and family composition.
On the same date the Applicant completed a further Statutory Declaration[12], again in the false name Mohammed Hussain Rezae which contained the customary acknowledgement that the declaration was:
by virtue of the Statutory Declarations Act 1959 and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.
[12] Exhibit T1, T28, page 482.
In the body of this statutory declaration, at paragraph 7 he declared:
to the best of my knowledge I do not have any matters which are either unresolved or in which I have been or am involved, that would bring into question whether or not I passed the character test as defined at section 501 of the Migration Act 1958.
On 12 August 2012, the Applicant provided to the Department Form 888 statutory declarations[13] from four individuals all of whom only appeared to know him by his false name.
[13] Exhibit T2, ST2-5. pages 576-583.
The Applicant also provided to the Department various statutory declarations and other documents[14] which also demonstrate that his associates only appear to have known him and dealt with him by his false name. One of the declarants was Shah Hussein Rahmati who claimed to be a friend of the Applicant,[15] but was in fact his brother.[16]
[14] Exhibit T2, ST6-9. pages 584-591.
[15] Exhibit T2, ST9 pages. 591.
[16] Exhibit T1, T22 page 305; T24 page 348; Transcript dated 9 November 2021 page 47 lines 12-13.
The Applicant also provided an updated statement in his false name[17].
[17] Exhibit T2, ST10 page 592 – 593.
The Applicant appears to have conducted his personal affairs in his false name[18].
[18] Exhibit T2, ST13-14 pages 605 – 607.
On 11 May 2011, the Applicant fraudulently obtained from the Australian Government a Titre de Voyage based on the false identity he had assumed[19]. He fraudulently obtained two further Titres De Voyage on 4 December 2012[20] and 16 March 2017[21]. The Applicant’s movement records[22] indicate that he has presented these fraudulent Titres de Voyage to Australia and fraudulent departure and arrival cards on five outgoing occasions and five incoming occasions over the period from 11 June 2011 to 3 July 2017.
[19] Exhibit T2, ST1 page 574.
[20] Exhibit T1, T5 page 228.
[21] Exhibit T1, T11 page 242.
[22] Exhibit T1, T26 page 387-388.
On 26 November 2013, the Applicant completed and signed a Form 40SP also in the false name Mohammed Hussain Rezae to sponsor his wife and their daughter for a Partner (subclass 100) visa.[23] In support of that application, he procured and provided a marriage certificate[24] which was also in the false name Mohammed Hussain Rezae.
[23] Exhibit T2, ST15 pages 609-618.
[24] Exhibit T2, ST12 page 595.
At item 52 in that Form 40SP the following appeared:
Warning: Giving false or misleading information is a serious offence.
…
I declare that the information I have supplied in this form is complete, correct and up-to-date in every detail.
I am aware that any person who provides false or misleading information or who deceives or misleads or who presents a forged document to an Australian Government official may be prosecuted.
I am aware that if false or incorrect information is given on this form, the application of the person (s) I am sponsoring may be refused, and/or any visa granted to that person may be liable to cancellation.
On 12 December 2014 the Applicant completed a Form 1300tEC in which he applied for Australian citizenship by conferral, once again under the false name Mohammad Hussain Rezaee[25].
[25] Exhibit T1, T4 pages 216-224
At item 39 of that form, the Applicant completed a declaration which included the following:
Warning: It is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application.
…
I declare that the information I have supplied in this form is complete, truthful and correct in every detail.
…
I hereby declare… The information I have supplied in this form is complete, truthful and correct in every detail…
On 11 December 2014, the Applicant completed a Form 1195 Identity Declaration[26], again in the false name Mohammed Hussain Rezae which contained the following warning:
WARNING: It is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make a false or misleading statement, or conceal circumstances in relation to an application.
[26] Exhibit T1, T4 page 225 – 226.
The Applicant also made the following declaration[27] in the false name Mohammed Hussain Rezae:
I declare that the information I have supplied in this form is complete, truthful and correct in every detail.
[27] Ibid 226.
On 9 February 2015, the Applicant made a statutory declaration[28] again in the false name Mohammed Rezae in which he acknowledged that he understood that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959 (Cth), and that he believed that the statements in the declaration were true in every particular.
[28] Ibid 227.
On 7 November 2016, in support of his citizenship application the Applicant again submitted the Marriage certificate which falsely stated his name as Mohammed Hussain Rezae.
The Applicant has also been dishonest in his dealings on many different dates since his arrival in Australia, with the New South Wales Government in gaining his learner driver’s permit in his fraudulent identity; the Victorian and Queensland Governments in fraudulently obtaining driver’s licences; and Medicare.
On 27 March 2017, the Department wrote a letter to the Applicant requesting that he provide identity documents from Afghanistan and Iran or Pakistan[29].
[29] Exhibit T1, T10 pages 237 – 239.
In response to this correspondence, the Applicant wrote back to the Department on 4 April 2017 again using his false name, requesting that they process his family’s application.
The Applicant applied using his false name, to the Australian Federal Police for a National Police Certificate, and received the National Police Certificate dated 5 May 2017 which he provided to the Department[30].
[30] Exhibit T2, ST 18 page 627.
On 12 September 2017, the Department wrote to the Applicant informing him that he was required to attend an interview for the purposes of identity verification[31].
[31] Exhibit T1, T12 pages 246 – 247.
On 27 September 2017, the Applicant participated in an interview at which he disclosed that:
(a)his real name was Mir Hussain Rahmati;
(b)he was born in 1985;
(c)the family composition he had declared throughout his dealings with the Department was false; and
(d)he had fraudulently altered a Tazkera to reflect his false identity but not presented it to Australian authorities.
The Applicant confessed lies about his family composition included admitting that not only were his parents not dead, but they were alive and living in Australia together with his brothers Ibrahim, Shane, and Dowlad. He also admitted that his claimed sons were in fact not his children, as he had declared in his Protection application. One child was in fact the child of his brother Mohammad Ali, and the other was the child of his brother Habibullah.
The Applicant had also falsely claimed that he had a brother killed by the Taliban, and omitted to declare his immediate family members in Australia.
Following further correspondence, on 8 March 2018 the Applicant’s application for Australian citizenship by conferral was refused on the basis that the delegate was not satisfied as to the Applicant’s identity.
On 27 August 2018, the applicant made a statutory declaration in the name “Mir Hussain Rahmati, also known as Mohammad Hussain Rezaee”. The use of the words “also known as” rather than “formerly known as” suggest that he was continuing to use his false identity. Subsequent to the Applicant’s admissions of 27 September 2017,[32] the Applicant had dealings with the ATO for the financial years ending 30 June 2018 and 30 June 2019 using his false name[33] . There is also evidence that he continued to use his false identity for the purpose of money exchanges until 1 August 2019[34].
[32] Exhibit T1, T4 pages 346 – 384.
[33] Exhibit T1, T24 page 344 - 342.
[34] Exhibit T2, ST21 pages 659 – 665.
On 24 July 2019 the Administrative Appeals Tribunal set aside the 8 March 2018 decision in accordance with terms of agreement signed by the parties, remitting the matter to the Department for reconsideration with a direction that the Applicant had provided sufficient evidence of his identity[35].
[35] Exhibit T1, T20 pages 288 – 289.
On 25 September 2019, the Applicant lodged a request to amend his name and date of birth in the Department’s records[36] with an accompanying statutory declaration which carried the customary warnings in Form 424C dated 24 September 2019.
[36] Exhibit T1, T20 pages 284 – 287.
The Queensland Government issued a Change of Name Certificate[37] in the name presently used by the Applicant, but listed his name registered at birth as Mir Hussein Rahmatullah, the date of registration being 9 December 2019.
[37] Exhibit T1, T21 page 292.
On 6 November 2020, the Department sent a letter to the Applicant’s representative inviting the Applicant to comment on adverse information, namely his provision of false information, false declarations and fraudulent documentation to the Department[38].
[38] Exhibit T1, T22 pages 297-307.
On 24 November 2020, the Applicant’s present representative wrote[39] to the Department saying that the Applicant acknowledged that he had “in the past provided significant misinformation to the Department regarding his identity and family composition,” and acknowledged that his actions were “unlawful and wrong”, but maintained that they were “not reflective” of his character.
[39] Exhibit T1, T23 page 313.
On 1 December 2020, the Applicant’s representative delivered the following documents to the Department:
(e)A statutory declaration[40] signed by the Applicant dated 27 November 2020;
[40] Ibid 318 – 319.
(f)A statutory declaration[41] signed by the Applicant on 27 August 2018;
(g)a submission[42] from his representative, Marg Le Sueur of Marg Le Sueur Migration Services;
(h)a statutory declaration[43] by Mr Peter Rowan dated 24 November 2020;
(i)a statutory declaration[44] from Mr Frank Zenobio dated 23 November 2020;
(j)a statutory declaration[45] from Mr John Cooke dated 25 November 2020;
(k)a statutory declaration[46] from Mr Mustafa Shafahi dated 27 November 2020;
(l)a statutory declaration[47] from Mr Nawroz Yusufi dated 30 November 2020;
(m)a National Police Certificate[48] dated 6 March 2020;
(n)Australian Taxation Office (ATO) notices of assessment for years ended 30 June 2017, 2018, 2019, and 2020[49];
(o)a transcript of his identity verification interview conducted on 27 September 2017[50].
[41] Ibid 320 – 323.
[42] Ibid 313 – 317.
[43] Exhibit T1, T24 pages 325 – 327.
[44] Ibid 328 – 330.
[45] Ibid 334 – 33-.
[46] Ibid 331 – 333.
[47] Exhibit T1, T24 pages 337-339.
[48] Ibid 325 – 327.
[49] Ibid 325 – 327.
[50] Ibid 325 – 327.
The statutory declarations provided on behalf of the Applicant were cast in broad terms and did not provide specific detail of the name by which the declarants knew the Applicant at the time they met, nor specific dates as to when he disclosed his deception to them.
Mr Rowan declared that he used to know the Applicant as Mohammad and in his experience, the Applicant had always been very honest totally reliable and trustworthy. He did not say when the Applicant had disclosed his correct name. He did however say that he had known the Applicant for the past 2 ½ years which the Tribunal takes to mean since about April 2018. It is clear from the statutory declaration that the Applicant was using his false identity at the time that he met Mr Rowan, many months after he made his disclosure to the Department.
Mr Zenobio said that he had known the Applicant, who had worked for him, for around two years. Mr Zenobio said that the Applicant was “on our books as Mir Hussain”. He said that he came from the same culture as the Applicant, and defended his conduct on the basis of “strong family values”. He did not mention the Applicant’s false identity, or whether he had ever known him by any other name. He did not give evidence at the hearing, and was therefore not able to fill in these gaps in his evidence. Having regard for the Applicant’s evidence at hearing that he had previously procured false statutory declarations from friends and provided them to the Department the Tribunal gives this statutory declaration no weight.
Mr Cooke stated that he had known the Applicant for around 2 ½ years. He said that the Applicant had “recently” told him of his correct name, and expressed fear of being deported. Mr Cooke described him as being of “very good character” and spoke positively of his workplace relations, and said he was an asset to Australia.
Mr Shafahi said that he was originally from Afghanistan and had known the Applicant all his life, and that they were sharing a house together as at the date of his statutory declaration. He referred to the conversation he had with the Applicant in October 2019 when the Applicant told him that he had told Immigration a false name and that he was now “starting to use his real name again”.
Mr Shafahi made no mention of any other awareness of the Applicant’s use of his false name, even though they had lived together for periods. Having regard to the weight of evidence as to the Applicant’s use of his false name, the Tribunal regards it as implausible and improbable that Mr Shafahi could have the stated close relationship and not been aware of the deception that the Applicant was practising. Having regard for the Applicant’s evidence at hearing that he had previously procured false statutory declarations from friends and provided them to the Department. This statutory declaration is therefore given no weight.
Mr Yusufi declared he was employed by the CFMEU as a union delegate, and one of his roles was to advocate for the interests of Tilers. He said he had personally known the Applicant for the past two years “in the community” and that “in the community we call him Rahmati” He said he had known about the Applicant’s problems with immigration “since last year”. He said he thought the Applicant was a good character, and not a liar. He said the Applicant had donated to a number of worthy causes. Having regard for the Applicant’s evidence at hearing that he had previously procured false statutory declarations from friends and provided them to the Department the Tribunal gives this statutory declaration no weight.
The Tribunal has had regard for the report[51] dated 8 April 2021 from consultant psychologist Professor James Freeman, who conducted a telephone assessment with the Applicant on 8 April 2021 without the assistance of an interpreter. During the assessment, the Applicant acknowledged having provided the Department with false documents and false declarations regarding his name, date of birth and family composition.
[51] Exhibit A2, Report of Professor Freeman.
The Applicant told Professor Freeman that he provided false documentation in a misguided belief that he could maximise the probability of sponsoring two nephews to Australia. He also told Professor Freeman that he had actively considered disclosing the false information to the Department on approximately 10 occasions. Professor Freeman recorded that the Applicant consistently articulated remorse and regret for his behaviour e.g.:
I told immigration so many lies. I wanted to bring the children to Australia. There is so much trouble in Afghanistan. I am so sorry. I know it is wrong.
The Applicant’s disclosure to the Department resulted in elevated stress levels for him and the prescription of stabilising medication. Professor Freeman thought the Applicant’s responses appeared genuine. Professor Freeman’s clinical assessment of the Applicant was that he had symptoms consistent with Adjustment Disorder that stemmed directly from the emotional stress associated with his current situation. Expressed in layman’s terms, the Tribunal observes that this appears to be a guilty conscience arising from his own conduct. Otherwise, Professor Freeman did not disclose any other cognitive impairments, Personality Disorders et cetera. He recorded “There were no observable abnormalities”.[52] neither were there any clear criminal treatment needs, antisocial ideations or deficits in character.[53]
[52] Ibid paragraph 10.7.
[53] Ibid 12.3.
Professor Freeman appeared to step into the role of advocate for the Applicant when he made remarks such as:
He has avoided alignment with a negative peer group, has not misused substances, and has no offending history. The only marked aspect of his psychosocial functioning is his: (a) initial misrepresentation of personal circumstances and (b) continuing to make false representations until he self disclosed his behaviour to the Department.[54]
[54] Ibid 12.1.
Professor Freeman made similar remarks at paragraph 12.2:
That is, he has not demonstrated a con assistant propensity to pathologically lie will be particularly manipulative across a range of different settings.
However he readily accepts culpability for making false statements (on multiple occasions across time).
The Tribunal has also had regard for the letter[55] from Matthew Bentley Psychologist dated 9 April 2021 which referred to the Applicant by his false name, and date of birth, and recorded that he had attended ten counselling sessions for “a depressed mood” during the second half of 2018 and into early 2019. This letter, in conjunction with the other evidence of communications by the Applicant after September 2017 leads the Tribunal to infer that the Applicant continued to use his false name in his general dealings for a considerable period after he had admitted his dishonesty to Departmental officials.
[55] Exhibit A3, Letter of Matthew Bentley, psychologist.
EVIDENCE AT HEARING
The hearing took place on 31 August and 9 November 2021. Ms Le Sueur appeared for the Applicant, and the Respondent was represented by Ms K Ervin.
In her opening address, Ms Le Sueur submitted that her client had lied to Australian authorities[56] , but despite his past behaviours was a good and decent person who would make a great Australian citizen.[57]
[56] Transcript dated 9 November 2021 page 26 lines 15 – 18.
[57] Transcript dated 9 November 2021 page 26 lines 31 – 32.
In evidence in chief, the Applicant acknowledged numerous false statements he had provided to the Australian government. When asked why he had used a false name he said he made a mistake, and it was to assist his family[58]. In response to a question whether he had ever considered telling the Department about his correct name, he said[59]:
Yes, I did. Once I had left the camp I went to the Immigration Department to change my name. They advised that after you become a citizen to change four years later.
[58] Transcript dated 9 November 2021 page 35 lines 9-10.
[59] Transcript dated 9 November 2021 page 35 lines 40 – 43.
He said “due to the family situation I was forced into trying – to sort something out providing false names particularly due to the child’s mother passing. I thought it would be a good idea to provide an incorrect name[60].”
[60] Transcript dated 9 November 2021 page 36 lines 2-4.
When asked why he had used a false name to sponsor his wife, the Applicant said “I have no other options. I was using this mistaken name. I had no other solution but to continue”[61].
[61] Transcript dated 9 November 2021 page 37 lines 35-36.
When asked why he had used false name to obtain a police clearance certificate he said “at that period, that was the name was using and I was forced to continue to use that name in order to obtain a police certificate[62].”
[62] Transcript dated 9 November 2021 page 38 lines 11-12.
When asked by the Tribunal, who forced him, he replied “So myself, whilst I was at camp I forced myself to use this name, so it was myself and now I’m paying the penalty for it.[63]”
[63] Transcript dated 9 November 2021 page 38 lines 16-18.
The Applicant acknowledged signing his citizenship application in his false name[64], and said he did this because that was the name he was using at that time[65].
[64] Transcript dated 9 November 2021 page 38 lines 35-44.
[65] Transcript dated 9 November 2021 page 39 lines 1-2.
The Applicant gave evidence regarding the death of his sister five days after giving birth to 1 of the children he had claimed to be his own, and said he’d been motivated by wish to “rescue” his orphan nephews.
The Applicant did not disguise the fact that he had given a false Afghan drivers licence to the Department of Transport in order to secure an Australian driver’s licence, even though he knew this was wrong and illegal[66]. He said he felt really ashamed and sorry and requested forgiveness for deceiving the Australian government[67].
[66] Transcript dated 9 November 2021 page 44 lines 4-44.
[67] Transcript dated 9 November 2021 page 45 line 8.
Cross-examination
In the course of cross-examination, the following exchange took place[68]:
MS ERVIN: These are statutory declarations supporting witnesses relating to your wife's partner visa application. How did you choose the people that provided, as the witnesses and provided their statutory declarations?
INTERPRETER: These are friends that I know. I requested and they accepted. They know me as Mir Hussain. However, I requested that they document Mohamed Hussain Rassi
MS ERVIN: So, you asked them to use the false name in these documents, is that correct?
INTERPRETER: Yes, I have requested them to document incorrectly, (indistinct).
MS ERVIN: If you turn to page 591. He says on the statutory declaration this one's for (indistinct) Hussain Rahmati. Is that your brother?
INTERPRETER: Yes. (Indistinct)
MS ERVIN: But in the statutory declaration it says, ' I am a friend of Mohamed Rassi'. Did you ask him to say that.
INTERPRETER: Yes, I requested that he document that. All these mistakes are my fault. These are mistakes I have made, and I am paying the penalty for it. I made mistake and I am taking medication as a result. I have become very sick and was going crazy to the point that I was going crazy with taking medication. That medication helped me to improve. Otherwise, I was in a crazy state. And I would have probably ended up in the mental hospital due to mental issues.
[68] Transcript dated 9 November 2021 page 46 line 45 – page 47 line 26.
The Applicant gave evidence that he had tried to go to Immigration a few times, but did not do so because of his fear.[69] When the Applicant was asked about the letter from the Department which required him to attend an interview for identity verification, the following exchange occurred[70]:
MS ERVIN: At the time that you received this letter inviting you to the interview, did you think that the department knew that you were using the false name?
INTERPRETER: I'm sure that they knew that I was using false name on that (indistinct) when I arrived at the interview. At the interview when they questioned if my name was (indistinct) Hussain, I said 'No, my name is Mohamed Hussain Rahmati. So, I advise that my correct name of Mir Rahmati.
[Tribunal emphasis].
[69] Transcript dated 9 November 2021 page 49 lines 14-16.
[70] Transcript dated 9 November 2021 page 49 lines 32-40.
Having made this statement, the Applicant immediately changed his evidence[71]
MS ERVIN: Sorry, I think I missed the start of your answer. Did you think the department knew or had some suspicion that you were using a false identity.
INTERPRETER: As I mentioned, I didn't know if they knew I was Mir Hussain Rahmati or Mohamed Rassi. So, the first question they asked me was whether I was Mohamed Rassi, I said 'No, I am Mir Hussain Rahmati'.
[71] Transcript dated 9 November 2021 page 49 lines 42 – page 50 line 3.
Throughout his evidence, the Applicant regularly referred to his past conduct as “mistakes”, and this prompted the following exchange[72]:
[72] Transcript dated 9 November 2021 page 53 lines 1-26.
MEMBER: Thanks very much. Mr Rahmati, on occasions during your evidence you've used the word mistake and false. Do you understand the difference between making a mistake and saying something that was deliberately false?
INTERPRETER: Both of them are pretty much the same. Wrong and mistake same thing.
MEMBER: Your decision to use a false name in your documents to the Australia Government was deliberate, wasn't it?
INTERPRETER: Yes.
MEMBER: So, it wasn't an accident?
INTERPRETER: I'm telling myself; all the mistakes were due to me.
WITNESS: My family obligation involve - - -
INTERPRETER: So, all the mistakes I have made, due to assisting my family and rescuing them.
MEMBER: Just clarify for me. It was not an accident that you used a false name, was it.
WITNESS: No.
Dr Freeman was called to give evidence, and verified his report, and his core finding that the Applicant accepted responsibility and culpability for his conduct, which he had “self disclosed”[73]:
So the core findings from structured professional judgment is that he accepts responsibility and culpability for his behaviour. He actually self-disclosed it eventually which can be considered arguably one of the highest forms of acceptance of his conduct and that is he wasn't forced by somebody else to accept culpability. His origins for his behaviour which are self-reported, appear credible in the sense that he had plans to sponsor other children.
[73] Transcript dated 9 November 2021 page 56 lines 41-47.
Dr Freeman went on to say[74]:
Importantly - and which I found to be quite credible is that when he originally came and filled out the forms and the documentation, he wasn't cognisant of the strict reporting conditions at the time in regard to his identity and it's fair to say that he might well have been vulnerable to persuaded by other people who assisted him travel to Australia. Importantly, he has successfully assimilated into the culture, the Australian culture, despite having some well documented exposure to personal stressors in the past. That is, he was able to obtain work, he maintained employment, he's been able to pay taxes. My assessment of him is that he appears to have had a lot to lose through self-disclosure of his identity with very little to gain. Importantly, this whole process and the investigation has appeared to effected his psychological wellbeing in the sense that when I was assessing him, he appeared to have an adjustment disorder. More recently - I give a lot of evidence and I've just realised that more recently I should explain what an adjustment disorder is a bit clearer to the tribunal. An adjustment disorder is essentially a form of depression but it's because you're directly exposed to something that's very stressful to you which is the current proceeding before the tribunal. I would expect that if that stressor was removed, then some of those underlying depressions would dissipate. From my point of view, the reason that he is stressed and he is experiencing this symptomatology is because he recognises this matter is very serious and he wants to remain in Australia and achieve his goals which are essentially prosocial in nature. When talking with the applicant, in a sense I found this matter to be associated a little with bit his naivety or his lack of experience which is understandable given he's never been to Australia before but as I mentioned before, he wasn't really aware of the situation and the importance of the matter in regard to failing to disclose some personal information. Stop me if I'm being redundant but as I mentioned before, you know, he's got no offending history, maintains employment. He's got capacity to maintain friendships and he generally appears to be quite a genuine person in my conversation with him.
[74] Transcript dated 9 November 2021 page 56 line 47 – page 57 line 30.
Dr Freeman also provided evidence of his basis for assessing the Applicant’s “demonstrated good moral qualities”[75]:
MS LE SUEUR: And so in finding that Mr Rahmati had demonstrated good moral qualities over an extended period of time, what's the reason for your findings and also his capacity to distinguish between right and wrong and behaving in an ethical manner? What's the reason for your finding?‑‑‑The reason for the finding is an aggregate of data. In short, he doesn't have a past offending history, he hasn't engaged in property, person or violence based offending. As I mentioned, he was able to obtain employment and generally been able to maintain stable employment. I mention briefly he's paid his taxes. There's no instability in his relationships in regards to violence, instrumental or reactive violence. He has not aligned himself with a negative peer support which has negatively influenced his behaviour. There's no substance abuse issues in this current matter and as I mentioned before, in the end his conscience got the better of him to a point and he self-disclosed his behaviour. So in my line of work, this is quite an unusual matter because I'm usually asked to provide evidence in regard to assessments for people who have committed one or a range of offences and in the current matter there's a complete absence of broader offending behaviour, particularly criminal (indistinct).
…
Apologies for labouring the point or going back over it but in short, he appears to have assimilated well into the Australian culture. As I mentioned, no offending in the past, maintained employment. His relationships haven't been marked by instability, he hasn't aligned himself with a negative peer support group, hasn't (indistinct) and et cetera, et cetera. So he really has tried - he appears to have tried to abide by the rules and regulations of the Australian community.
Thank you. I think you may have already answered this but just for the sake of completeness and if you have anything else to add, you state that he has behaved in an ethical manner. Could you please give some examples of why you believe this?‑‑‑Well in short, because there's an absence of unethical behaviour, obviously apart from this matter before the tribunal. As I mentioned, he's almost without fault shown a consistent ability to abide by the rules and regulations of the community which he's been living in. And that has been demonstrated - my understanding is for a considerable period of time now with no other hiccup which is commendable on his behalf.
[75] Transcript dated 9 November 2021 page 58 lines 11-28.
In cross-examination, Professor Freeman confirmed that the Applicant displayed no observable abnormalities on the majority of the mental state examination factors, but had symptoms consistent with an adjustment disorder[76], and that his assessment was based on a single telephone conversation[77], and that the Applicant’s mental health as at that date[78] was “generally okay.[79]”
[76] Transcript dated 9 November 2021 page 60 lines12-15.
[77] Transcript dated 9 November 2021 page 61 lines17-20.
[78] Transcript dated 9 November 2021 page 62 lines10-13.
[79] Transcript dated 9 November 2021 page 61 line 27.
Following cross-examination, the following exchange took place between the Tribunal and Professor Freeman[80]:
Okay. Now, is it your understanding that that disorder was of relatively recent origin at that time?‑‑‑My understanding was that that disorder was because of the exposure to all those stressors. So yes, it was relatively - it's very difficult to determine the origins or the very start of such a disorder, particularly given the applicant's - I don't want to use the word unusual but he has had a somewhat extraordinary psychosocial functional in regard to the things that he's done in his life and with the different countries. But it's very difficult, Mr Maguire, to determine where - when and where that actually started. But what I would like to highlight - and I apologise if I'm rambling on - is that for an adjustment disorder, it's actually another indication that the individual is prosocial because what's happening to him now, it's stressful to him. If he was a criminal or he was planning on doing bad things in the future, well he wouldn't really care so much about what actually happened here and that's particularly my experience with the parole boards. People who, yes, they're almost impervious to the threat of sanctions and it doesn't bother him. But he presented to me as somebody who very much wanted to re-establish his life and this matter before the tribunal was stressful.
Well, I come then to the point that the evidence before shows that he made deliberately false statements to not only the Australian government but state governments and other authorities over a period of about seven years. If we go back to the date of his initial arrival in Australia, would I be correct in saying that you'd not be in a position to say that he suffered any psychological issue at that time?‑‑‑Not with any level of psychological certainty, I agree.
[80] Transcript dated 9 November 2021 page 62 lines 15-39.
Evidence of Mustafa Shafahi
Mr Shafahi gave evidence and confirmed the veracity of his statement dated 27 November 2020. He gave evidence of the Applicant’s helpful attitude towards others.
In cross-examination, the witness denied any knowledge that the Applicant had been using a false name in Australia[81], and in reply to a question from the Tribunal he agreed that he was would describe himself as a close friend of the Applicant.[82]
[81] Transcript dated 9 November 2021 page 62 lines 14-15.
[82] Transcript dated 9 November 2021 page 70 lines 31-32.
Having regard for the Applicant’s history of manipulating evidence via compliant friends the Tribunal gives little weight to this evidence.
Evidence of John George Cooke
Mr John George Cooke gave evidence and affirmed the veracity of his statutory declaration dated 25 November 2020. He said he had known the Applicant three years and was very impressed with his work ethic and honesty.[83]
[83] Transcript dated 9 November 2021 page 71 lines 42-47.
In the following exchange he gave the reason the Applicant had given him for using a false name[84]:
What was the reason that he gave you for using the false name?‑‑‑Well, it was something to do with his family. That he was worried that - because some of his other family was here that he mightn't be able to get residency. They mightn't accept him as a refugee. I can't remember exactly what it was but it was something to that effect.
[84] Transcript dated 9 November 2021 page 73 lines 4-8.
The first two years he had known the Applicant he knew him by a false name[85].
[85] Transcript dated 9 November 2021 page 73 line 21.
The Tribunal accepts this evidence, and is concerned that it appears to disclose an explanation for the Applicant’s conduct other than those provided by the Applicant at interview, or at hearing. This adds to the concerns about the Applicant’s credibility.
Closing submissions
In her closing submissions, Ms Le Sueur submitted that the Applicant had been motivated to lie by an overwhelming sense of responsibility for his orphan nephews. She said the cultural imperative of family obligation was noted as an important factor in a case which she provided to the Tribunal[86]. The Tribunal’s decision would seriously impact the Applicant’s eight-year-old daughter who has never lived with her father. His application to sponsor his wife and daughter was not being processed in consequence of Direction 80.
[86] 1813689 (Refugee) AATA 348 (31 January 2020).
In her closing submissions, Mr Ervin submitted that having regard to the evidence before the Tribunal and the citizenship policy, the Tribunal cannot be satisfied that the Applicant is of good character, having provided false information over a number of years in order to obtain particular migration outcomes and having asked his friends and family to provide false statutory declarations in doing so.
She further submitted that the Tribunal has consistently found that providing false information, particularly when this is done in order to achieve a particular migration outcome is of itself sufficient to demonstrate that a person is not of good character for the purposes of paragraph 21(2)(h).
Ms Ervin acknowledged that whilst the Applicant had paid his taxes in Australia, he had done so on the basis of false information provided to the Australian Tax Office. While the Applicant's friends may consider him to be of good character, in accordance with the description of good character outlined in Irving good character does refer to the person's enduring moral qualities rather than their good standing, fame or repute in the community.
Reliance on Professor Freeman’s evidence should be limited to his psychological assessment, that there were no observable abnormalities on the majority of mental state factors but that the Applicant had symptoms consistent with an adjustment disorder.
CONSIDERATION
The Applicant arrived in Australia on 1 February 2010. He made no attempt to enter the country lawfully, instead choosing to enlist the assistance of people smugglers to whom he paid US$7000 to circumvent the customary immigration processes. The Applicant arrived without formal identity documents and lied to authorities about his identity, providing a false name and false personal and family details.
In Australia, the Applicant continued to employ his false identity, apparently for all commercial and government dealings. This conduct involved the repetition of his lies over a period of years up until 27 September 2017 when he admitted at interview his true name birth details and family composition. Whilst it might be contended that the Applicant self disclosed, his own evidence was that he was “sure that they knew [he] was using a false name” and this suggests that to the extent that he did self disclose, he did so in damage control.
Among the government dealings in which he employed his false identity including an application to sponsor his wife and daughter, his application for a five year Resident Return (subclass 155) visa, and the current citizenship application. His citizenship application was initially refused because the delegate was not satisfied as to his identity. That decision was set aside by the Administrative Appeals Tribunal and remitted for reconsideration with a direction that the Applicant had provided sufficient evidence of his identity on 24 July 2019. Subsequent to this, on 25 September 2019 the Applicant lodged a request to amend his name and date of birth in the Department’s records.
Professor Freeman’s assessment and evidence are of course founded on the veracity of the information provided to him and the answers given to him by the Applicant, who has shown himself over many years to be a serial liar, and manipulator of evidence. Whilst Dr Freeman’s evidence possibly gives some insight into the Applicant’s state as at 8 April 2021, it does not provide any evidence of any medical condition current as at 1 February 2010 which would lessen the seriousness of the Applicant’s conduct, and neither does it provide any evidence of a reason for the Applicant to continue his pattern of lies for a period of over seven years after that date.
The Tribunal considers that Professor Freeman gave undue weight to the Applicant’s claimed “self-disclosure” as he did so in circumstances where he was “sure” that the Department knew he was using a false name. Dr Freeman’s assertions that “there was an absence of evidence of unethical behaviour apart from this matter before the Tribunal” and that the Applicant has “successfully assimilated into Australian society” risibly minimises the seriousness of the Applicant’s deliberate false statutory declarations and manipulation of evidence over such a long period of time.
Whilst the Applicant has sought to paint an altruistic picture of himself of trying to “rescue” his brothers’ children, the reality is that his evidence (if it is to be accepted) that his decision to deceive Australian authorities as to his identity was undertaken as a calculated first step towards a further deception of Australian authorities, namely a planned sponsoring of his brothers’ children, on the basis that they were his own. On the other hand, it may be that the Applicant’s false identity was assumed to evade the arrest and prosecution he says were threatened by the people smugglers, or for the reasons stated by Mr Cooke, to enhance his prospects of a refugee visa by deception.
The evidence of Mr Cooke that the Applicant told him that his motivation arose from concerns that if the Australian Government knew the truth it might adversely affect his chances of being accepted as a refugee is of significant concern to the Tribunal, as it represents a total abandonment of the dual reasons the Applicant provided at interview, and only one of which was maintained at the hearing, and introduces a very plausible motive for his actions.
At interview, the Applicant claimed that the people smugglers had threatened him with arrest in Australia if he did not give them money[87]:
Then the link of the smugglers told me if you do not give me the envelope we arrest you. We ask my friends to come to arrest you. Yeah, if you go to Australia I have a link in Australia to arrest you in Australia. That’s what the smuggler link told us. Yeah, one of the links of the smugglers told me if you go to Australia, I know all of your details. Your name, all details. I report to the Department of Immigration of Australia. I have a contact with them, like to arrest you because you are going illegally. The only, reason why I changed my name because of that. I feel fear maybe the smuggler report to the immigration department. I change my name. Because of the threat of the smugglers. I change my name. I didn’t tell my family name. But the second thing was I want to save the children.
[87] Exhibit T1 T24 pages 374-375.
In his evidence before the Tribunal, the Applicant did not touch on the alleged threat by the people smugglers, and made no mention of what Mr Cooke said he had been told.
In his statutory declaration[88] of 27 August 2018, the Applicant made no specific mention of the fear of arrest he had expressed at interview, and focussed on his concern to “rescue” the children, a plan which he abandoned after his arrival in Australia.
[88] Exhibit T1 T23 pages 320-323.
Having regard to the innumerable lies this Applicant has consistently and routinely told to the Australian Government (many in statutory declarations), and seemingly virtually everyone else he dealt with from the date of his arrival in Australia until 27 September 2017, the Tribunal gives his evidence no weight, and is unable to make a finding as to his true motivation.
The fact that the Applicant has acknowledged that he prevailed upon his friends to make false statutory declarations in support of his sponsorship application, raises a very strong concern that he may have engaged in similar conduct in relation to the statutory declarations placed before this Tribunal, and the evidence at hearing.
It may be that the Applicant’s plan (if it ever existed) to falsify his identity and sponsor his nephews was in response to the alleged threats of the people smugglers. The fact that he abandoned his claim after he had taken steps to protect himself against his threatened arrest is an action leaves the Tribunal in serious doubt as to whether he ever actually had his claimed plan.
If in fact that plan to “rescue” the nephews never existed at his time of entry, the Applicant could hardly go the Immigration Department or come before this Tribunal relying on his fear of arrest as threatened by the people smugglers as a basis for asserting his good character, or fear of rejection of his refugee status if he told the truth. He needed a more altruistic and noble basis for that assertion.
The Tribunal accepts that this Applicant has made some positive contributions to the Australian community, and has paid is taxes, he had done so in a dishonest fashion. Presumably he is well liked by his friends, otherwise they would not have lied at his request.
The Tribunal also accepts that the Applicant’s attempt to sponsor his wife and daughter will, in consequence of this decision continue to be the subject of Direction 80, but that is not a relevant consideration in determining his good character.
Section 21 (2) (h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application. It is well-settled that Australian citizenship is “a privilege given to persons who demonstrate good character”[89]
[89] Per SM Handley in Haeri and Minister for Immigration and Citizenship [2009] AATA 42 at [35].
In Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen, at paragraph 8 discussed the role of the character requirement in a citizenship application as follows:
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 community 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.
This Tribunal has consistently found that provision of false information in order to obtain a particular migration outcome demonstrates that a person is not of good character for the purposes of the Act.
In Jill Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148, the Tribunal stated (at [35]):
Many of the provisions of the section [of the Migration Act 1958] are reflected in the regulations, particularly in schedule 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first sub-section to the giving of false information, the use of bogus documents and the making of false or misleading statements. These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.
In Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082, the Tribunal stated (at [81]-[81]):
…there is only one conclusion to which I can come. Mrs Nguyen has failed, repeatedly, to provide true and accurate information to the Department in support of her application for citizenship.
Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.
Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
More recently, in Koker and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 118, the Tribunal stated (at [194]):
The Tribunal is satisfied that Mr Koker deliberately provided false information on his visa application to achieve a certain migration outcome and such a finding would of itself be sufficient for the Tribunal to find that Mr Koker is not of good character pursuant to subsection 21(2)(h) of the Citizenship Act.
Similarly, in HGTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3728, the Tribunal stated (at [126]):
The Applicant has maintained a practice of deceiving the Department from his arrival in Australia in 2010 until the hearing before the Tribunal. That continued deception, which was made worse by his statutory declaration dated 19 February 2018 and subsequent bogus death certificates, is not the conduct of someone demonstrating enduring moral qualities of a person of good character.
The Applicant is a serial liar, and has failed to demonstrate to this Tribunal that he has the requisite enduring moral qualities necessary to achieve citizenship. He should be thankful his conduct has not led to prosecution on multiple occasions.
Consideration of the totality of the evidence in this case leads the Tribunal to find that the Applicant was not a person of good character as at the date of the decision under review, and remains so as at the date of this decision.
In ruling against the Applicant, the Tribunal is mindful of the fact that after a period of time, it may be that he is able to satisfy the good character requirement.
Decision
In the light of all of the foregoing, the Tribunal is not satisfied that the Applicant was a person of good character at the time the Reviewable Decision was made, nor as at the date of this decision, and accordingly, the Reviewable Decision is affirmed.
I certify that the preceding 126 (one hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
.............................[SGD].....................................
Associate
Dated: 14 February 2022
Date(s) of hearing: 31August 2021 and 9 November 2021 Applicant In-person Advocate for the Applicant: Marg Le Sueur Migration Services Solicitors for the Respondent: Clayton Utz
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