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

Ramazani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1801 (17 June 2021)
Division:GENERAL DIVISION
File Number(s): 2019/7239
Re:Ghulam Ali Ramazani
APPLICANT

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

DECISION
Tribunal:L M Gallagher, Member
Date:17 June 2021
Place:Perth

The reviewable decision, being the decision of a delegate of the Respondent dated
18 October 2019 to refuse the Applicant’s application for Australian citizenship by conferral, is affirmed.
...........[Sgd].............................................................
L M Gallagher, Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied applicant was of good character – wilfully providing false information – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(h), 24, 52(1)(b)
CASES
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
Fang and Minister for Immigration and Border Protection [2018] AATA 3686
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Ghumaan and Minister for Home Affairs [2019] AATA 200
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Nguyen and Minister for Home Affairs [2019] AATA 998
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy (1 June 2016)
Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019) – CPI 15, Item 4.7
REASONS FOR DECISION
L M Gallagher, Member
17 June 2021
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent dated 18 October 2019[1] to refuse the Applicant’s application for citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).
[1]R1, T17, pp 131–141.
The basis for the refusal was that the delegate was not satisfied that the Applicant was of good character, as required by s 21(2)(h) of the Act, because he provided incorrect and misleading information when applying for a protection visa and for Australian citizenship.[2]
[2]R1, T17, p 138.
The application for review of the Reviewable Decision is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision under s 24 of the Act.
BACKGROUND
The Applicant is a 26 year old citizen of Afghanistan, who arrived in Australia in 2010 without a visa, as an Irregular Maritime Arrival.[3] On 9 May 2011, the Applicant lodged an application for an Onshore Protection (Class XA subclass 866) visa, which was granted on 11 May 2011.[4] The Applicant currently holds a Resident Return (subclass 155) visa, which was granted on 22 June 2018.[5]
[3]R1, T6, p 24; T17, pp 134, 136; R2, ST3, pp 237, 277. The Applicant is referred to as having first arrived in Australia on either 28 June 2010 or 28 August 2010. The Applicant recalls his arrival date as being 28 August 2010: Transcript, p 9 [35]-[45].
[4]R1, T6, p 24;T17, pp 134,136; R2, ST5, p 265–289.
[5]R1, T17, p134.
On 5 June 2015, the Applicant applied for citizenship by conferral with the Department of Immigration and Border Protection,[6] which later came to be known as the Department of Home Affairs (the Department). The Applicant provided a number of documents in support of his application.[7]
[6]R1, T4, pp 6–16.
[7]R1, T5, pp 17–20.
On 2 May 2017, a delegate of the Respondent refused the Applicant’s application for citizenship on the basis that the delegate was not satisfied of the Applicant’s identity and was therefore prohibited from approving the application.[8]
[8]R1, T6, pp 24–28.
The Applicant applied to the Tribunal for a review of the delegate’s decision dated 2 May 2017 and lodged further documents, including evidence of his identity, in support of his application.[9]
[9]R1, T7, pp 29–60.
On 24 November 2017, and with the parties’ consent, the Tribunal remitted the Applicant’s application for review to the Department for further consideration taking into account the Applicant’s additional evidence.[10]
[10]R1, T8, p 61.
On 4 July 2018, the Department wrote to the Applicant requesting further information.[11] On 11 July 2018, the Applicant responded to this request and provided a number of additional documents.[12]
[11]R1, T9, pp 62–67.
[12]R1, T10, pp 68–84.
On 12 April 2019, the Department wrote to the Applicant inviting him to comment on adverse information.[13] The letter informed the Applicant that he had provided inconsistent information regarding his brother (the Brother), as follows:[14]
On 9 May 2011 you lodged an application for an Onshore Protection (subclass 866) visa. As part of this application you provided details of all non-accompanying family members. Specifically, you listed your brother [the Brother].
On this Onshore Protection visa application you indicated your brother [the Brother] was deceased, and claimed that he had been killed by the Taliban in 2005. The death of your brother was used as a part of your protection claims relating to this application. On 11 May 2011 you were granted an Onshore Protection (subclass 866) visa based on the claims you made.
On 15 July 2013 you departed Australia, and returned on 29 August 2013. Upon your return to Australia you completed an Incoming Passenger Card. On this Incoming Passenger Card you listed your emergency contact as [the Brother] phone number [xxxx xxx xxx].
On 5 June 2015 you lodged an application for conferral of citizenship. As part of your citizenship application you completed Form 1399 – Declaration of Service and Form 80 – Personal Particulars for Assessment. On both of these forms you again listed a brother by the name of [the Brother], and indicated he died in Afghanistan in approximately 2004. Both of these documents have been signed by you on 7 August 2017, declaring that all of the information you have supplied is complete, up-to-date and correct in every detail.
Departmental records indicate an individual matching the above details. This individual holds the phone number listed on your Incoming Passenger Card as an emergency contact, and has listed a family composition almost identical to that of your own. Departmental records also indicate that you are currently residing at the same address: [address]. This individual lists your current email address [email address] as their preferred method of contact.
Given your above statements, it appears you have provided false and misleading statements regarding your brother [the Brother], his current status and the circumstances surrounding your time in Afghanistan. This demonstrates a propensity for attempting to deceive the Department in circumstances where you consider it advantageous to do so.
…
[13]R1, T11, pp 85–92.
[14]R1, T11, pp 87, 88.
On 5 October 2019,[15] the Applicant (through his migration agent) responded to the Department’s invitation to comment, following the grant of an extension of time to do so.[16] The migration agent’s letter stated that:[17]
On 9 May 2011 my client lodged an application for an Onshore Protection (subclass 866) visa. As part of this application he provided details of all non-accompanying family members which was translated by a translator in Dari language. [The Applicant] was 16 and a half years [sic], scared, intimidated and overwhelmed by the interview process. He was unsure of his eldest brothers’ whereabouts in particularly [sic] his brother [the Brother] as he relied for [sic] his brother’s information from his parents who were unsure if he was dead or alive as several years had passed since their son [the Brother] left home.
Thus, [sic] presumption was made that [the Brother] was dead at that given time. Later, in August 2011 [the Applicant] was made aware by his parents that [the Brother] was alive and lives at [address]. By then, [the Applicant] had not turned 18 years yet and was living under [sic] care of his guardian … at [address] under [sic] department’s [sic] instructions for children under 18 years.
Once [the Applicant] was 18 years [sic], he then moved with his brother [the Brother] at [address]. In May 2012, [the Applicant] was issued [sic] Travel Authority so he could travel overseas.
On 15 July 2013, [the Applicant] travelled to Pakistan to visit my [sic] parents. On his return, he completed an Incoming Passenger Card and listed his eldest brother [the Brother] as my [sic] emergency contact, whom he lived with in Australia with his phone number [xxxx xxx xxx]. There was no deception or intent to mislead the department [sic]. My client completed the form as it should have been completed.[18]
Two years later, on 5 June 2015, my client lodged an application for conferral of citizenship in which he provided incorrect information. My client without understanding the severity of the information just continued to provide the same information as he had earlier in the Onshore Protection (subclass 866) visa application, a copy of which he used as a reference in filling in the citizenship application.
[The Applicant] in his ignorance, failed to comprehend or understand that forms could have new information or could be corrected when new information as [sic] available in the current circumstances. He is his lack of understanding copied the forms from an old application that resulted in errors and incorrect information.
…
(Emphasis added).
[15]R1, T12–T15.
[16]R1, T16, pp 107–129.
[17]R1, T16, pp 111–112.
[18]See also A1 [4.24].
In a statutory declaration dated 4 October 2019, the Applicant declared, relevantly:[19]
[19]R1, T12, pp 115–117.
When I came to Christmas Island, I was not sure if [the Brother] was dead or alive. I was very young and naïve, believed in everything I was told by my elders; during that time, I had heard from my parents who were in Pakistan that [the Brother] went to our village and never returned. It was then presumed that he might be dead or had fled to another country, but they were not sure, so I stated in my statements that [the Brother] was dead, which was incorrect…
…
In August 2011, I was made aware by my parents that my brother [the Brother] is alive and they provided me with his contact details. I was very happy to hear that my brother [the Brother] was alive and is in Perth, Western Australia. We met and I moved to his Unit in May 2012 at [address].
I state that I did not report any changes or informed the department of the incorrect information that I had provided about my brother [the Brother] in my above stated [visa] application forms or declarations.
On 15 July 2013, I travelled to Pakistan to visit my parents. On my return, I completed an Incoming Passenger Card. On this Incoming Passenger Card, I listed [the Brother] as my emergency contact in Australia with his phone number [xxxx xxx xxx].
…
It is correct that on 5 June 2015 I lodged an application for conferral of citizenship. As part of your citizenship application I completed Form 1399 – Declaration of Service and Form 80 – Personal Particulars for Assessment. On both the forms the incorrect information was repeated. As part of the citizenship application I provided incorrect details under siblings/family members about [the Brother] and the date I moved in with my brother in May 2012 instead of August 2011 at [address], as stated in the form.
In Form 1399 – Declaration of Service at item 10 “Your family details”, in the table “Your siblings (include half, step and adoptive brothers and sisters)” the Incorrect Information is on the first line about my brother – [the Brother], died in Afghanistan, date of death 03/2004…
(Emphasis added).
On 18 October 2019, a delegate of the Respondent made the Reviewable Decision.[20]
[20]R1, T17.
On the same day, the Applicant applied to the Tribunal seeking review of the Reviewable Decision.[21]
[21]R1, T2.
LEGISLATION AND POLICY FRAMEWORK
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 states that ‘[i]f a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen’. Where a person is not eligible to become an Australian citizen under s 21(2), the Minister must not approve the person becoming an Australian citizen.[22]
[22]The Act s 24(1A).
A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Act, as follows:
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
(Emphasis added.)
Whether the Applicant is a person of good character at the time of the Minister’s decision on the application for citizenship is the only eligibility criterion in issue in these proceedings.
The meaning of good character
The term ‘good character’ is not defined in the Act. The Tribunal is however assisted by the Australian Citizenship Policy (1 June 2016) (the Policy) and the Revised Citizenship Procedural Instructions (1 January 2019) (the CPIs).[23]
[23]The Revised Citizenship Procedural Instructions were published on 1 January 2019 to support the function of the Australian Citizenship Act 2007 (Cth).
As established in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[24]
[24]Drake, 645.
‘Good character’ is defined in ch 11 of the Policy:[25]
[25]The Policy pp 136–7.
“Good character” refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship …
The term “good character” is not defined in the Act. Therefore, the Federal Court and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; at (431-432):
Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
In this context, “moral” does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
·     characteristics which have been demonstrated over a very long period of time
·     distinguishing right from wrong
·     behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
The Policy further provides that an Applicant of good character would, among other things:
·     respect and abide by the law in Australia and other countries
·     be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·     be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
·     providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
·     involvement in bogus marriage
·     concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
·     involvement in Centrelink or Australian Tax Office fraud
·     giving false names and/or addresses to police
·     not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·     not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·     not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·     not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·     not be the subject of any extradition order or other international arrest warrant
·     not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·     not be the subject of any verifiable information causing character doubts.

Chapter 11 of the Policy provides the following guidance on the Tribunal task of weighing up the character decision:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia's community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
In Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 (at [7]), the AAT said:
“a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be “lasting” or “enduring” depends on the merits of each case, but in most cases will go back prior to any visa application.
The CPIs set out a number of factors that may be taken into account when assessing whether an Applicant is of good character, including the Applicant’s behaviour in his or her interactions with government officials, as follows (CPI 15, Item 4.7):
The Australian community expects that persons in Australia will abide by Australian laws. This includes providing correct information when seeking a government benefit or service.
It is relevant to consider whether the applicant has been honest in dealings with the Department. Decision-makers should consider all of the applicant’s interactions with the Department, including visa and citizenship applications.
…
If the applicant has knowingly presented incorrect information or a bogus document, this may reflect on the person’s character. If the applicant presents the incorrect information or bogus document unknowingly, there would be no ground for character concern.
(Original emphasis.)
In Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082

at [82]–[84], Senior Member Puplick emphasised the importance of Applicants being truthful:
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.
Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort [sic] to placing themselves in the hands of deceitful third parties.
(Emphasis added and footnotes omitted.)
Further, in Fang and Minister for Immigration and Border Protection [2018]
AATA 3686 at [97], Senior Member Puplick made the following comment about the need for an Applicant to be truthful about their identity:
…those, who are not citizens and who are seeking to do so, must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement – applicable indeed, equally to citizens and non-citizens alike
(Emphasis added.)
The Respondent has submitted to the Tribunal both the relevant authorities and the Policy make it clear that:[26]
(a)a person can fail to establish that they are of good character even if they have not been convicted of any criminal offences;[27] and
(b)it has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character.[28]
[26]R2, [13].
[27]See for example, Chapter 11 of the Policy, at page 147 (extracted at [22] above) and decisions extracted at [25] and [26] above.
[28]For example, Beyan v Minister for Immigration and Border Protection [2015] AATA 256.
As to referee reports (that is, character references), the Policy states:[29]
… [they] can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, or who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc., if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.
(Emphasis added.)
[29]The Policy p 155.
ISSUE
The issue for review by the Tribunal is whether the Tribunal is satisfied as to the Applicant’s good character for the purposes of s 21(2)(h) of the Act.
EVIDENCE
The matter was heard in Perth on 25 February 2021, with the parties appearing at the hearing in person.
The Applicant was represented by Mr A Kapoor of AK Migration & Visa Services. The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant’s evidence was taken with the assistance of Ms Zahra Kamalkhani, Farsi interpreter. The Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers.
The Tribunal admitted the following documents into evidence at the hearing:
·Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 30 July 2020, with attachments 1–21 (A1);
·statutory declaration of the Applicant, dated 31 May 2020 (A2);[30]
·statement of Applicant’s friend A, dated 15 March 2020 (A3);
·statement of Applicant’s friend B, dated 7 February 2020 (A4);
·statutory declaration of the Brother, dated 13 April 2020 (A5);
·character reference of Applicant’s employer, dated 26 January 2021 (A6);
·section 37 T-documents (T1–T15), comprising 147 pages (R1);
·supplementary T-documents (ST1–ST19), comprising 443 pages (R2); and
·Respondent’s SFIC, dated 8 September 2020 (R3).
[30]The Applicant also provided an earlier statutory declaration on 17 August 2017 (R1, T7(a); duplicated at T10(h)) and a statement and statutory declaration dated 23 November 2010 (R2, ST3). These documents and A2 comprise the Applicant’s witness statements in the matter.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Applicant’s entry interview
On 6 September 2010, the Applicant sat an entry interview conducted by an officer of the Respondent. An interpreter was present along with a representative from Life Without Barriers. During this interview, the Applicant indicated the Brother was “killed by [sic] Taliban”.[31]
[31]R2, ST1, p 204, in answer to Part B, Question 23, “Details of Brothers and Sisters – Eldest first.”
During the entry interview, when asked why he left his country of nationality (country of residence), the Applicant answered:[32]
[32]R2, ST1, pp 208, 218.
…In 2004 my father owned land in Afghanistan and was very scared of the Taliban.
Q.       Why?
A.Because the Taliban are very powerful in Halmand [sic] Province and we are Hazara and Shia. Nothing happened to my father but my brother was killed in 2005.
Q.       By who?
A.The Taliban. They told my brother they wanted the documents to the land, because Halmand [sic] province belongs to Pashtoons [sic] and Hazara people have no right to be here.
Q.       How was he killed?
A.Mr Brother [sic] refused to give the Taliban the land documents. So [the] Taliban shot him 4 or 5 times and sent his body to my family.
(Emphasis added).
The Applicant told the interviewer that he chose Australia as his destination because he would be seen as an asylum seeker there.[33]
[33]R2, ST1, p 215.
When asked what he thought would happen if he went back to Afghanistan, the Applicant told the interviewer:[34]
The Taliban will kill me because they killed my brother and will kill me because I’m Hazara Shia.
(Emphasis added).
[34]R2, ST1, p 216.
The Applicant’s evidence at hearing
During examination in chief, the Applicant stated that during the period of his life when he was in Pakistan prior to his departure for Australia he did not see the Brother, he did not know anything about him and the Brother was not with their family.[35] The Applicant said his parents had told him that the Brother had returned to the village from where they came.[36]
[35]Transcript, p 17 [35]-[45]; p 18 [5].
[36]Transcript, p 18 [35].
When directed to the three instances in his entry interview where he stated that the Brother was killed by the Taliban,[37] the Applicant said:[38]
[37]See [34], [35] and [37] above.
[38]Transcript, p 10 [10]–[45]; p 11 [5]; p 22 [25]; p 23 [10] and [40]; p 24 [20]-[35] and p 25 [5]-[25].
INTERPRETER:        You know I didn’t say it clearly that [my brother was killed by the] Taliban. I said that he disappeared or he’s missing but maybe probably [he] have [sic] been killed by [the] Taliban.
MR KAPOOR:           So at that particular time you were unsure of your brother’s death or [if he was] alive?
INTERPRETER:        Yes, because I didn’t know whether he’s alive or dead because I could not say anything on my own about [sic], I have no knowledge about it.
MR KAPOOR:           So that’s what you mentioned in your interview, is it?
INTERPRETER:        You know this interview they took it from me exactly a couple of hours after I got into Christmas Island and I was quite dizzy after many hours of travelling by boat and they ask me and I was quite confused myself. But this is what I talked either dead or alive and I didn't know what happened.
…
MR KAPOOR:           …did you see the transcripts of the interview in writing at the time when – or was it read to you once back once they had made the translation?
INTERPRETER:        I really can’t remember whether they read it to me but I didn't see these things at all.
MR KAPOOR:           What was [the Applicant’s] age when this interview took place?
INTERPRETER:        I don’t know, 16, 17.
…
INTEPRETER:          You know I never said that that [my brother] was killed and I don’t know how come that they wrote it killed because I always said that he has gone and he never returned back and maybe he was killed. But never said that directly that he was killed.
…
INTERPRETER:        You know I mean Helmand province it is correct, the Helmand is control and belong to Pashtun people and Hazara people always had this problem, I could be killed. But I don’t know how they put it like this as a reason for that. I mean I don’t know how this has come like this.
…
INTERPRETER:       You know I mean I'm sure you didn't live in Afghanistan. I mean the life there at that time when you – somebody disappear [sic] somebody [sic] because fears of [sic] his or her life disappear [sic] and leave the country the possibility is either (indistinct) or they’re killed and disperse. I mean there is [sic] all different option [sic] is [sic] for that person.
…
MEMBER:…there were three times in the entry interview where [the Applicant] is recorded to have told the interviewer that his brother [the Brother] has been killed by the Taliban in 2005 and about the reason why they targeted his brother to kill him. And that his belief that the Taliban will kill him also because they killed his brother. So [the Applicant] has also said that he didn't say to the interview that his brother was killed. So, is [the Applicant] saying as well that he didn't say any of these things that are recorded about his brother and about his fear of being killed because his brother was?
INTERPRETER:       You know in [sic] all three occasion [sic] I said that my brother has returned back to the province and he never returned back. And I may [sic] said it that [sic] might [sic] be [sic] killed but I never said he was killed.
…
INTERPRETER:       You know honesty is the way to go, this is the first time I can see those information has written in my statement.
MEMBER:So is it safe to say then that [the Applicant’s] evidence that anything that’s stated in here about his brother, his brother being killed, how he was killed, his own reason for fearing being killed because his brother was killed, and also what happened to his brother after he was recorded to have been killed he didn't say any of it?
INTERPRETER:       You know this is obvious regarding returning back home I said it and everybody knew at that time that if I go back I may be killed.
MEMBER:So just again, Ms Interpreter, just if [the Applicant] could answer the question that I've put. So the answer would either be yes or no. All those parts that I mentioned about the recording being that his brother was killed, when, by who, how, why, his own fear to be killed himself because of his brother he didn't say any of it? So yes or no?
INTERPRETER:        Yes, I didn't say it and I didn't say that he was killed.
MEMBER:                  Any of it, okay.
INTERPRETER:        Any word about killed not say [sic].
(Emphasis added).
As to the circumstances under which his entry interview was given, the Applicant said:
(a)his body was sunburned and he was dizzy and confused. He didn’t know where he was. His ear was blocked, he couldn’t hear properly and he didn’t know what was happening;[39] and
(b)he could not recall if anyone read the record of his interview to him prior to him signing it.[40]
[39]Transcript, p 26 [15]–[25]; p 30 [20–[25].
[40]Transcript, p 26 [25]–[40].
When taken to the reference in his statutory declaration dated 23 November 2010, that he was told that the Brother was killed by the Taliban and that if he returned, he feared he would be killed like his older brother,[41] the Applicant stated that he ‘never said he could be killed like his older brother’.[42]
[41]R2, ST 3, p 252–253.
[42]Transcript, p 28 [30].
The Applicant said that once he was released from detention (on Christmas Island), he was transferred to a detention centre in Melbourne.[43] The Applicant said he then went to Sydney and lived in the community in someone’s care and then a person whose name he could not recall.[44] The Applicant said that he was then sent to Perth where he lived in the community in the care of his guardian (the Guardian).[45]
[43]Transcript, p 30 [30]–[40].
[44]Transcript, p 30 [30]–[45].
[45]Transcript, p 31 [5]–[15].
As to when the Applicant first came to learn the Brother was alive and was in Australia, the Applicant said:[46]
INTERPRETER: You know when I was living with [the Guardian] as a person who taking care of me and then through my parents I was informed that my brother is in Australia. And then when [the Guardian] – and [the Guardian] informed me about that, that my brother is in Australia through my parents and also my parents. And then I was very happy, then I decided to go to my brother.
[46]Transcript, p 31 [25].
The Applicant said that, at the time he was reunited with the Brother:
·he was unaware of his obligations;
·he didn’t realise he was required to inform the Department that the Brother was alive;[47] and
·he never thought to do so.[48]
The Applicant said he had no intention to hide this information and listed the Brother as an emergency contact on his incoming passenger card when he travelled to Pakistan (to visit his parents).[49] The Applicant said he also did not think to inform the Department that the Brother was alive when he sought to correct his date of birth at the time he was invited to comment on adverse information in 2019,[50] because at this time he was providing personal identification information and “that kind of thing.”[51]
[47]Transcript, p 31 [35].
[48]Transcript, p 33 [45].
[49]Transcript, p 31 [35]–[45]. Refer to copy of incoming passenger card at R2, ST6 at p 290, which lists the Applicant’s brother as his emergency contact. See also A1 at [4.7].
[50]See [10] above.
[51]Transcript, p 34 [5]–[20].
The Applicant said that when it came to the time of completing his Form 80:[52]
INTERPRETER: You know nobody helped me, only I ask other Afghani who did also citizenship application and I said “How do I do that?” They said that you just get your case from the [protection visa] application that you have previously…and put all the information on the citizenship application form. And I just listened to them and I did based on what they told me to do.
[52]Transcript, p 33 [5]; R1, T7.
During cross-examination by Mr Burgess, the Applicant said his parents had told him that when he was about four years old they fled the Helmand province in Afghanistan, sought refuge in Iran and then Pakistan, where they remained until 2004.[53] The Applicant stated he then returned to Kabul, Afghanistan in 2004, when he was around 10 years old, although he does not remember this time.[54]
[53]Transcript, p 37 [30]–[40].
[54]Transcript, p 38 [10]–[20].
The Applicant said that between the time he left Afghanistan at four years of age and the time he returned to Kabul, he lived with his parents and cousins from his father’s side.[55] When asked by Mr Burgess, the Applicant said he could not remember if his two brothers and three sisters were living with him during this time.[56]
[55]Transcript, p 38 [30]–[45].
[56]Transcript, p 39 [20]–[25].
As to the Brother’s whereabouts during this time, the Applicant said his parents told him that the Brother went to Kabul (in 2004, with the family), then left his parents and returned to the Helmand province, never to return.[57]
[57]Transcript, p 40 [5]–[20].
Mr Burgess then took the Applicant to the following extract from his statutory declaration dated 23 November 2010, under the heading “The reasons I left Afghanistan”:[58]
We went to Kabul. My father sent out my oldest brother [the Brother] to our village and he never returned. At the beginning my father was reluctant to send him alone but he was very persistent to go. I was told that he was killed by the Taliban. After this incident my father decided to stay in Kabul and we stayed there for the next three years.
[58]R3, ST3, p 252.

In the relation to the extract,[59] the Applicant stated he never said that the Brother was killed and that the statements in that para are derived from what his parents told him, rather than his own recollection of those events.[60]
[59]At [49] above.
[60]Transcript, p 40 [35]–[45]; p 41 [5].
When asked, by Mr Burgess, the Applicant said that he could not recall whether the content of his statutory declaration dated 23 November 2010 was translated back to him by the Hazaragi interpreter despite his signed indication on this document that this had occurred.[61]
[61]Transcript, p 41 [15]–[45]; p 42 [5]–[15]. The Tribunal notes that A1 at [2.3] and [4.1] indicates the interview on 23 November 2010 was conducted in the presence of a witness and a Persian translator.
The following exchange then took place regarding the Applicant’s entry interview:[62]
[62]Transcript, p 44 [15]–[45]; p 45 [5]–[10].
MR BURGESS:         You arrived on Christmas Island on 28 August, didn't you?
INTERPRETER:        Yes, 28^th.
MR BURGESS:         Yes. Well, I put it to you that this interview was on 6 September, so more than a week later.
INTERPRETER:        No. After this long journey by boat then I was quite unwell, vomiting for many days and also I was sick and not quite aware when exactly happens, or what happened.
MR BURGESS:         You were aware that you were being interviewed, for the purpose of seeking a protection visa?
INTERPRETER:        You know when they got me to Christmas Island I didn't know at all that was going to happen to me. When three person and they took me in a room, saying three person present, and I didn't know what they were going to do and what's happening. It wasn't me, I wasn't myself and I didn't know what's happening, what they were doing to me. And I - - -
MEMBER:So Mr Burgess has just asked if [the Applicant] was aware that the purpose of that interview was in relation to the protection visa. So from what [the Applicant] said just now, does that mean the answer is no, he didn't know he was being interviewed for the purpose of obtaining a protection visa?
INTERPRETER:        Nothing about seeking asylum or protection, but I knew that they were going to ask me about my ID, who are you? Where do you come from, and those things. They were going to ask me all those information.
MR BURGESS:         Well, you were asked why you chose Australia as your destination and your answer was Australia will see you as an asylum seeker. So I put it to you that you knew that you were being interviewed because you were seeking asylum in Australia, weren't you?
INTERPRETER:        You know, of course because Afghanistan was not the place to live and, of course, I was seeking a place, peaceful, in order to live.
MR BURGESS:         And when you were interviewed you knew that to get protection in Australia you would have to demonstrate that you had a well-founded fear of persecution, that you were - that you might be harmed if you were back in Afghanistan?
INTERPRETER:        You know the only thing I knew about - I mean life risky situation of myself that I knew that part of minority, part of Shia Muslim, Hazara and also be of a life was in risky situation, we could be killed in Afghanistan.
MR BURGESS:         You knew that if you told the interviewer that you would be targeted by the Taliban that would assist your claim?
INTERPRETER:        Yes. I mean the only thing I said that my life is in danger and also everybody knew that there's lots of killing going on there and that was what I said to the officer at that time.
(Emphasis added).
When asked if his ears were blocked at his entry interview on 6 September 2010, which was more than a week after he arrived on Christmas Island, the Applicant said he could not recall.[63]
[63]Transcript, p 47 [10]–[15].
When asked if he told the interviewer at his entry interview that the Brother was killed by the Taliban to strengthen his claim for the protection, and if he did so knowing that the Brother was alive, the Applicant answered “no” to both questions.[64]
[64]Transcript, p 47 [20]–[30]
When asked if he told the interviewer that the Brother had been shot four or five times and the body sent to his parents,[65] the Applicant said he did not say those things.[66] When directed to his declaration that a form[67] containing the claim the Brother had been killed had been translated back to him, the Applicant said that he could not remember this having occurred.[68]
[65]See [35] above.
[66]Transcript, p 48 [15]-[25].
[67]Being the form completed following the Applicant’s interview on 23 November 2010 for the purpose of his being assessed for refugee status.
[68]Transcript, p 49 [40]–[45]. The Tribunal notes that A1 at [2.3] states the details and information taken at this assessment occurred in the presence of a witness and a Persian translator.
The Applicant said he did not know that the Brother had left Afghanistan in 1999 and come to Australia:[69]
[69]Transcript, p 51 [25]–[45]; p 54 at [10]–[25].
MR BURGESS:         I put it to you that your brother, [the Brother], left Afghanistan in 1999 and came to Australia, that's correct, isn't it?
INTERPRETER:        I didn't know about it.
MR BURGESS:         Well, you live with your brother, don't you?
INTERPRETER:        You mean here?
MR BURGESS:         Yes.
INTERPRETER:        Yes.
MR BURGESS:         Well, when you first moved in with your brother, in 2011, did he not mentioned [sic] that he'd been in Australia for 12 years?
INTERPRETER:        No, only he said he's very happy that I'm here but also he was not happy that I came - arrived illegally, to Australia.
…
MR BURGESS:         … was it your understanding that from the time your brother left Afghanistan until 2011 he never contacted your parents?
…
INTERPRETER:        Yes, maybe has contacted my parents but didn't say that he’s in Australia he said I'm in overseas.
MR BURGESS:         Did your parents – how do you know that he told your parents that he was overseas?
INTERPRETER:        I don’t know, I'm just guessing that maybe he said that.
(Emphasis added).
As to the indication in the records that the Applicant and the Brother met in Jakarta in 2010 on the way to Australia:[70]
[70]Transcript, p 54 [25]–[35]; p 55 [5]–[45].
MR BURGESS:         …Your brother visited Afghanistan for four months in 2009. In 2009 you were living in Afghanistan, weren’t you?
INTERPRETER:        I can’t remember whether I was there or in Iran.
MR BURGESS:         Okay, well, you left – where did you leave from when you went – when you came to Australia in 2010?
INTERPRETER:        From Pakistan.
MR BURGESS:         And had you been in Afghanistan before that year?
INTERPRETER:        I mean we there continuously I mean moving through Afghanistan, Iran. I don’t know, maybe we were there or maybe not.
MR BURGESS:         And you went from – where did you go from in Pakistan? Were you in Quetta when you left?
INTERPRETER:        Quetta.
MR BURGESS:         And from there where did you go? Did you go to Karachi?
INTERPRETER:        That was all a smuggler arrange as a group. I don’t know how they took us where was it. I cannot say, that was as a group.
MR BURGESS:         Well, if I can take you to page 214 of the supplementary T documents again. So you say:
Three months ago I left Quetta.
So this is the beginning of September, so that’s August, July, June. June you left Quetta in Pakistan? You went to Kuala Lumpur by plane.
INTERPRETER:        Yes.
MR BURGESS:         Yes, and then you went to Jakarta in Indonesia, didn't you?
INTERPRETER:        I don’t know, they just – that was first time in travelling.
MR BURGESS:         Well, you told - - -
INTERPRETER:        Maybe it was Jakarta.
MR BURGESS:         You told the Department when you were interviewed that you’d been in Jakarta, didn't you?
INTERPRETER:        Yes. I mean I think that the smuggler said here is Jakarta and then I said it also to officer there I could not say it for sure.
MR BURGESS:         Well, your brother was in Jakarta at that time as well, wasn't he?
INTERPRETER:        I can’t remember. No, how should I know that?
MR BURGESS:         Well, I can take you to the departure card. If the tribunal can go to ST – I'm just finding the document. …Sorry, the next page 296. It’s an incoming passenger card. It says:
In which country did you board this flight or ship? Jakarta.
So I put it to you that you met with your brother in Jakarta on the way to Australia.
INTERPRETER:        Never.
(Emphasis added).
During re-examination, the Applicant said the first time he knew about the Brother being in Australia was the end of 2011 or the beginning of 2012, “when he lived with [the Guardian] for a while.”[71] The Applicant said his parents had given him this information.[72]
[71]Transcript, p 59 [40]–[45]. The Applicant indicated in his SFIC that he was made aware by his parents in August 2011 that the Brother was alive (A1 [4.6]). The Applicant also indicated he became aware the Brother was alive “a few months” after January 2011 (A1 [6.1]).
[72]Transcript, p 60 [5].
When asked if he knew that the Brother had been in Australia since 1999, the Applicant said:[73]
INTERPRETER: You know I said it from very beginning, if I knew I must be very crazy not to let immigration knows [sic] about it.
…
INTERPRETER: …if I knew that my brother was here, even for the case of my immigration matter, it was much better to say my brother was here. And I was also – could be happy to have a brother here. And this also, it could be helpful for my immigration matter. But if I knew, of course I could tell them because it was useful for me also.
[73]Transcript, p 60[40]–[45]; 61 [5].
CONSIDERATION
The issue for review is whether the Applicant was, as at 5 June 2015,

of good character for the purposes of s 21(2)(h) of the Act.
Whether the Tribunal is satisfied that the Applicant is of good character
The Applicant
Mr Kapoor made the following submissions for the Applicant in support of his claim that the Applicant is of good character for present purposes:
(a)The Applicant had no reason to provide the Department with incorrect information about the Brother on his incoming passenger card.[74]
(b)When the Applicant applied for citizenship in 2015, he, “in all his ignorance and simplicity,” completed the application on the assumption that the Department was fully aware of his circumstances, having interviewed him prior in relation to his assessment for refugee status.[75]
(c)The Applicant has upheld Australian law and Australian values and conducted himself in accordance with Australia’s community standards.[76] The Applicant contends this is evidenced by the character references and bank documents attached to his SFIC.[77]
(d)The Applicant has been a law-abiding Australian resident and is well-respected in his community and in Australian society.[78]
(e)The Applicant has no impending charges or complaints against him.[79]
[74]A1 [4.24]–[4.25]; [6.2]; [6.6].
[75]A1 [6.3].
[76]A1 [6.5].
[77]A1 [6.5].
[78]A1 [4.25].
[79]A1 at [4.25].
Mr Kapoor made the following additional submissions at hearing:[80]
[80]Transcript, p 61 [20]–[45] and pp 62–70 [5]–[15]. The Tribunal acknowledges that during Mr Kapoor’s closing address at hearing he made numerous oral submissions regarding the manner in which the Applicant’s various interviews were conducted, the way in which his forms were completed, the way information relating to those interviews and forms were obtained (for example, the “copying over” of information between forms without checking for accuracy and the lack of accurate translation of matters in the various documents prior to signing). These matters were not raised in the Applicant’s written submissions. In any event, after seeking clarification from Mr Kapoor at hearing, it remained unclear to the Tribunal the actual contention that followed on from Mr Kapoor having raised these matters, other than the unfortunate nature of the Applicant historical circumstances. The Tribunal emphasises that it has, in its consideration addressed the Applicant’s submissions insofar as it appears they relate to the issue for review, being whether it is satisfied as to the Applicant’s good character for the purposes of s 21(2)(h) of the Act.
MR KAPOOR:           …[the Applicant] reached [Australia] and there was no ulterior – there was no focus of using a brother’s death or a brother’s not knowing where he is, or where he was, to use that to secure protection in Australia.
….
MR KAPOOR:           … [the Applicant] was unfortunate at that particular time that what he said or what he did not say was then translated and put into the documentation for him to sign and he signed.
MEMBER:So would you say then that the answers in those documents are incorrect in their entirety or only in relation to the matters that have specifically been put to Mr Ramazani in relation to his brother and his date of birth.
MR KAPOOR:           His brother and his date of birth.
…
MEMBER:But … all of those references that were made as to how [the Applicant’s] brother was killed, and when, and why, are all errors, that’s what I heard, that’s what I understand the applicant’s case to be. I just wanted to hear that confirmation in your submission.
MR KAPOOR:           It is – it’s obviously – there is a discrepancy.
MEMBER:                  On all of the occasions. Spanning months.
MR KAPOOR:           Spanning that period of 2010 and since then, it was just carried on to continue with the same lane.
…
MEMBER:… so you would maintain that that is your submission that information was copied over from earlier information into the present form, handed under [the Applicant’s] nose to sign – do you reconcile that though with [the Applicant’s] evidence that he doesn’t recall the circumstances or the people present at those interviews? …So he doesn’t remember but you are telling me that that’s how it occurred.
MR KAPOOR:           I am assuming.
MEMBER:                  You’re assuming, you’re assuming, thank you.
MR KAPOOR:           Other than that, the applicant’s parents did not divulge the brother was alive or dead to [the Applicant] because there is a fear factor in Kabul, Afghanistan, Pakistan, where there is a lot of kidnappings that take place.
…
MEMBER:All right. So that being the case what’s the submission that you draw from that, therefore - - -
MR KAPOOR:           That the parents may have known but - - -
MEMBER:                  But we don’t know.
MR KAPOOR:           We don’t know. But [the Applicant] was not aware of it.
MEMBER:                  Yes.
MR KAPOOR:           Until the time the parents told him in 2011 and 2012 that his brother was alive and in Australia. And that’s how it led to – and the applicant at that particular time did not know the process how to inform the Department or to let the Department know that the applicant - - -
MEMBER:So then again we’re going on assumptions, like you said. Would you say that [the Applicant’s] parents decided to let him know about his brother being alive in Australia in 2011/2012, that was [the Applicant’s] evidence, because that’s when they first became … aware or because that’s when they decided culturally or personally that that was the right time to tell [the Applicant]?
MR KAPOOR:           It’s again an assumption from our end that the parents assumed that this is the right time….And then following that [the Applicant] lived with the brother.
MEMBER:                  Yes.
MR KAPOOR:           And the brother and [the Applicant] did not share much in terms of their past experiences.
MEMBER:                  So it never came up in all that time.
MR KAPOOR:           In their own cultural background again. Again, it goes to assumption that they don’t share much and whatever is required - - -
…
From my client’s perspective it’s unfortunate, that’s the main key factor here, that it’s unfortunate. Ifs and buts will not count anywhere but the thing is unfortunate situation has occurred for him in his span now and he has made amends, he’s a person with a good character and has been established in the society, has been lived here and understands now, he understands how the character and the ethical values are in this country and what is required for him to do.
The times when it should have mattered, if he could, he would amend it now. He could have done that earlier. But you can’t put the clock back. But at the same time, he has been a part of the society, looking – and has been contributing to the society and the economy in the best possible way…
…
MEMBER:                …The questions and answers at the time when Mr Burgess was asking [the Applicant] about his brother’s passenger cards and there being points in time where it was put to him whether they were in the same place at the same time, and [the Applicant] answered no, that wasn’t true…. Did you want to make any closing comment about that…I just wanted to put it to you that that was raised.
MR KAPOOR:           That was only a speculation from Mr Ashley’s point that a person is travelling somewhere and it’s a same time, same - - -
MEMBER:So you don’t dispute that on the papers, that’s what – factually, whether they saw each other or not…that’s what [the records] indicate, so there’s nothing – there’s no error in that circumstance like there was in the interviews and everything else like that.
MR KAPOOR:           There is no error in that, a person is free to travel whichever country he wants to and it is circumstantial that he is there at that particular time, or passing to from there, who knows what’s happened, that’s just based on the movement records.
(Emphasis added).
The Respondent
The Respondent’s submissions in the present matter are as follows:[81]
[81]R3 [18]–[23].
(a)The Applicant has intentionally provided false information and practiced material deception during his visa and citizenship applications and this weighs against a finding that he is of good character. In particular:
(i)At the time of lodging his protection visa application in 2010, the Applicant asserted that the Brother had been killed by the Taliban in 2005. The Applicant claimed that there was a real chance that he would also be killed or harmed if returned to Afghanistan. In reality, the Brother was living in Australia, having arrived more than 10 years earlier.
(ii)Having been granted a protection visa based on this information on 11 May 2011, the Applicant asserts he was then notified by his parents that the Brother was living in Australia. The Applicant then commenced living with the Brother in August 2011. At no time did the Applicant advise the Department that the Brother was alive nor that he had provide incorrect information in his protection visa application. A person of good character would have updated the Department, given the clam was a substantial part of his application.
(iii)The Applicant has now also admitted that he knowingly provided false information in his citizenship application in 2015. In particular, as part of his application for citizenship, the Applicant again asserted that the Brother was deceased. The Applicant knew this to be false because from 2011 until the date he lodged the application, the Applicant had been living with the Brother in Perth. The Applicant only admitted to the false declaration after the Department discovered that the Applicant was living with the Brother.
(b)The Applicant has now attempted to depart from the assertion that he thought the Brother was deceased, by stating that at the time of the interview his family had not heard from the Brother and the Applicant therefore presumed that he had either left the country or was killed.
(c)The Applicant is not presently of good character, in circumstances where he continues to deny that he wilfully provided false information during his application for a protection visa. The Applicant’s false declarations demonstrate a willingness to falsify information where it may be of benefit for him in his dealings with the Government.
(d)The Policy states that an applicant of good character would, relevantly, respect and abide by the law, would be truthful and would not practise deception or fraud in their dealings with the Australian Government by for example “providing false personal information” (such as fraudulent work experience of qualification documents) or other material deception during visa and citizenship applications.” This is echoed in the CPI, which states that a person of good character would not practice deception or fraud in dealings with the Australian Government, for example:
(i)intentionally providing false personal information; or
(ii)practicing other material deception during visa and citizenship applications.
(e)The Applicant’s deception when lodging his protection visa application, his citizenship application and during the current proceedings weighs against a finding that the Applicant is of good character.
(f)For the reasons set out in (a) to (e) above, the Tribunal should not be satisfied that the Applicant is of good character. The Applicant’s evidence, for instance the character references, does not outweigh the three significant issues set out above, especially as the referees do not acknowledge the character issues identified. As stated by Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home.

Mr Burgess made a number of additional submissions at hearing, as follows:[82]
[82]Transcript, pp 70–73.
(a)The Tribunal should draw an inference that the Applicant has intentionally provided false information to the Department and practiced material deception during his visa application, his citizenship application and at hearing based on the following:
(i)the Applicant was interviewed by an officer of the Department in the presence of an interpreter who spoke both Dari and Hazaragi. That recording of interview has been questioned by the Applicant’s representative as containing incorrect or false information. That evidence is not before the Tribunal and rather, the Applicant’s representative has asked the Tribunal to assume that there were errors in only the parts that might disadvantage the Applicant in the present application; and
(ii)the interview document that was contemporaneously reported in 2010 is a correct record of the interview that took place, in the absence of evidence to the contrary and where the Applicant has contemporaneously acknowledged this as being the case.
(b)If the Tribunal accepts the matters in (a) above, then the Tribunal must also accept that at the time the Applicant told the Department that the Brother had been killed (and gave a graphic and detailed explanation of how this occurred) is not true, because at the time that this is said to have occurred in 2004 or 2005, the Brother was living in Australia, having moved here in 1999 which is evidenced by the Applicant’s own statutory declaration and his movement records.
(c)Having regard to (a) and (b) the Tribunal should have difficulty accepting many of the Applicant’s other claims, for example in relation to his later interview document and visa application, in the absence of corroborative evidence.
(d)Again, the Applicant doesn’t remember his visa application document, such that the Tribunal should simply accept the contemporaneous evidence as better evidence of what took place. This document notes that the Applicant has again claimed that the Brother had been killed, to support his application for a protection visa on the basis that he may also be killed if he were to return to Afghanistan.
(e)The Applicant’s representative asks the Tribunal to assume that the visa application document was simply a copy from the interview transcript. The interview transcript was not released to any party, so would not have been before the Applicant when he was completing the application for a protection visa. Therefore, this information could have only been provided by the Applicant himself.
(f)The Applicant then provided a statutory declaration on 23 November 2010 which, although he doesn’t recall giving it, was interpreted back to him according to the document by a NAATI qualified interpreter.[83] Again, that document refers to the Applicant’s brother having been killed. If the Applicant’s representative wished to suggest to the Tribunal that this document was not in fact interpreted back to the Applicant, then he should have asked for the interpreter to give evidence and be cross-examined on that, which hasn’t occurred.
(g)There is no evidence before the Tribunal that the Applicant’s parents arranged for him to travel and that the Applicant didn’t know where he was going when he first made contact with the people smugglers. Rather, it is an assumption, as is that the Applicant’s parents may have known (but the Applicant was not aware) that the Brother was alive, as it may have put his family at risk. The Brother was not made available for cross-examination in order to give evidence regarding these matters.
(h)The fact that the Applicant ended up living a couple of suburbs away from the Brother who had been to many countries, thousands of kilometres away, cannot be seen as a simple coincidence. Rather, the Tribunal should infer that the Applicant had been in contact with the Brother, that he was aware that the Brother had settled in Perth and that he chose to invent a story to bolster his claims for a protection visa that the Brother had been killed in 2005.
(i)It simply cannot be accepted by the Tribunal that if the Applicant believed the Brother had been dead since 2005 and was reunited with him in 2011, that the Applicant wouldn’t have asked the Brother what had occurred since he had last seen him or that having lived together, it would have not come up in conversation that the Brother had been living in Australia since 1999. It is simply not plausible that that conversation hadn’t taken place.
[83]R2, ST3.
Consideration
The Tribunal’s task in this matter is to assess whether the Applicant is of good character for the purposes of s 21(2)(h) of the Act.
The Applicant would like the Tribunal to accept that at all times prior to his informing the Department otherwise in late 2019, including:
·during the entry interview process;
·during his protection visa application process; and
·during the citizenship application process;
he genuinely believed that the Brother had been killed by the Taliban in 2005.

The Applicant had attested to this being the case on at least five occasions during this period.[84]
[84] See above [35], [37], [39], [41] and [49].
At hearing, however, the Applicant was emphatic that he never said the Brother had been killed, and rather, he was unsure whether the Brother was alive at that time. The Applicant conceded that it was a matter which he had no knowledge about at that time in any event, then offered the following additional explanations for the discrepancy between the interview record and his oral evidence:
(a)He was dizzy and confused at his entry interview.[85]
(b)His ear was blocked at his entry interview (although he later said he could not recall this) and he couldn’t hear properly.[86]
(c)He did not know what was happening at his entry interview.[87]
(d)He can’t remember if his answers given at his entry interview were read back to him but he didn’t say those things. He could not recall these matters in relation to the content of his statutory declaration dated 23 November 2010 either.[88]
(e)He may have said at interview that the Brother might have been killed but never said he was (actually) killed.[89]
(f)When asked to clarify his answer, he said he did not say any word about the Brother having been killed.[90]
(g)Statements as to the Brother’s and his other siblings whereabouts at particular times were based on what his parents had told him, rather than his own personal recollection of those events.[91]
(h)He had (at its highest) guessed that the Brother had maybe contacted his parents from when the Brother left Afghanistan in 1999 to come to Australia but had the view the Brother hadn’t told his parents that he was in Australia.[92]
[85] See above [39].
[86] See above [40].
[87] See above [40].
[88] See above [41].
[89] See above [41].
[90] See above [30]; Transcript p 28 [30].
[91] See above [50].
[92] See above [56].
At hearing, Mr Kapoor essentially asked the Tribunal to accept that the Applicant’s answers given at interview and declared in writing over the relevant years were incorrect only in relation to matters regarding the Applicant’s date of birth and the Brother.
Mr Kapoor would also like the Tribunal to accept that even though the Applicant’s evidence was that he does not recall the circumstances or the people present at his various interviews and declarations being taken, it is sufficient to assume that:
(a)information from the earlier documents was copied over into the more recent documents and handed to the Applicant to sign;[93] and
(b)in 2011 or 2012, the Applicant’s parents thought it was the right time to tell the Applicant his brother was alive, although he made no submission about whether this was the first time the Applicant’s parents became aware of this or where they knew earlier, as early as 1999, but did not inform the Applicant because of the ‘fear factor’ in Kabul or other cultural reasons.[94]
[93] Transcript p 12.
[94] Transcript pp 64–65.
At hearing, Mr Kapoor did however, concede that the Applicant could have informed the Department sooner that the Brother was alive and that ‘ifs and buts will not count anywhere.’[95] Mr Kapoor’s contention that the Applicant has since ‘made amends’ appears to the Tribunal to be based on the notion that the Applicant has lived in the Australian community in a positive manner in more recent times.
[95] Transcript p 69.
Overall, drawing this material together, it appears to the Tribunal that in the Applicant’s view, his having informed the Department in 2019 that the Brother was alive should be somehow seen as negating the previous misinformation:
(a)during the Applicant’s entry interview;
(b)on the Applicant’s subsequent visa application;
(c)on the Applicant’s citizenship application; and, even now,
(d)at hearing after having given an affirmation to tell the truth,
and that this negation leads the Tribunal to a finding that the Applicant is of good character.
The Tribunal struggles with this proposition to the extent that it is unable to reconcile these matters in a way that results in the negation sought. The Applicant’s correction of information regarding the Brother occurred at the stage in the citizenship application process where the Department had already put to him information adverse to his citizenship application and at no time before that.
Even if the Tribunal were to accept that the Applicant did not mislead the Department on his protection visa application, and/or on his citizenship application (noting that the Tribunal accepts neither of these matters) and rather, that these processes were riddled with translation and interpreter issues in the way the Applicant claims (and of which no evidence has been presented), the Applicant’s oral evidence at hearing was such that:
(a)he could either not recall material matters; or
(b)matters that he could recall were largely based on assumptions or what his parents had told him which by his own evidence may or may not have been true in itself.
The circumstances addressed above, in the Tribunal’s view, demonstrate that the Applicant informed the Department that the Brother had been killed by the Taliban:
(a)on numerous occasions; and
(b)for the purpose of securing his protection visa and to obtain citizenship.
By his own evidence, the Applicant did not know the fact of the Brother’s death to be true when he declared it as being the case on numerous occasions spanning a number of years and with the knowledge that doing so would be to his benefit in the visa and citizenship application processes. Rather, the Applicant assumed this information. When corrected by the Department, the Applicant conceded the error in the sense he accepts the Brother was alive at the time but, even now, maintains he had never said the Brother had been killed or how this had occurred. This behaviour is, in the Tribunal’s view, unconvincing and demonstrable of a continued refusal to accept responsibility for his actions.
The Tribunal refers to the Policy and case extracts and paras [25], [26] and [28] above in this context. Together, all of these factors weigh against the Applicant’s claim to good character for the purpose of s 21(2)(h) of the Act. Further, the Tribunal considers there are no circumstances and/or an explanation provided by the Applicant which outweigh the behaviour in question, or serve to mitigate it.
Character references
The Applicant has provided a number of character references in support of his application.[96] At hearing, Mr Kapoor indicated that all of the Applicant’s referees “are aware of the Applicant’s citizenship being cancelled.”[97] The Tribunal takes this to mean that the referees were aware that the Applicant was seeking that citizenship be granted and their references were provided in support of this.
[96]These character references are contained within A1 at Attachment 19; A3; A4; A5; A6; T7(b) (duplicated at T16(e)); T7(c) (duplicated at T16(d)).
[97]Transcript, p 13 [35].
However, having considered each of the references provided, none make any specific reference at all to the circumstances which resulted in the finding that the Applicant was not of good character. Further, none of the referees were made available for cross-examination at hearing, including the Brother and hence;
(a)the Tribunal has no evidence from the Brother in relation to the Applicant’s claims regarding the Brother having been killed and his whereabouts at various times, such that the Applicant’s evidence on these matters remains uncorroborated; and
(b)all the evidence contained in these references more generally remains untested.
In the circumstances, and referring to the Policy,[98] limited weight can be placed on these references.
[98]Extracted at [28] above.
CONCLUSION
For the reasons outlined above, the Tribunal cannot be satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.
DECISION
The Reviewable Decision is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

............[Sgd]............................................................
Associate
Dated: 17 June 2021

Date of hearing: 25 February 2021

Representative for the Applicant: Mr A Kapoor, AK Migration and Visa Services

Representative for the Respondent: Mr A Burgess, Sparke Helmore Lawyers

[2021] AATA 1801

17 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Date of hearing:	25 February 2021
Representative for the Applicant:	Mr A Kapoor, AK Migration and Visa Services
Representative for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers