RBRF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 161
•4 February 2022
RBRF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 161 (4 February 2022)
Division:GENERAL DIVISION
File Number(s): 2021/3315
Re:RBRF
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:4 February 2022
Place:Sydney
The decision under review is affirmed.
..................................[sgd]......................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – refusal of a citizenship application – whether the applicant is of good character – where the applicant has provided false or misleading information – where the applicant has maintained false or misleading information in order to obtain a particular immigration status – where status of other applications called into question – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 23A, 24 and 26
Migration Regulations 1994 (Cth) sch 2
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Browne v Dunn [1893] 6 R 67
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Eidson and Minister for Immigration and Border Protection [2017] AATA 1354
Elias v Commissioner of Taxation [2002] FCA 845
ER Aston and Y Aston and Secretary To the Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366
Fang and Minister for Immigration and Border Protection [2018] AATA 3686
Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84
Jones v Dunkel (1959) 101 CLR 298
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Mohammed and Minister for Immigration and Border Protection [2018] AATA 687
Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082
Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
AUSTRALIAN CITIZENSHIP POLICY STATEMENT
Australian Government Department of Home Affairs, ‘Refugee and humanitarian program: Refugee visas (offshore)’ (Web Page) <immi.homeaffairs.gov.au/what-we-do/refugee-and-humanitarian-program/refugee-visas>
CPI 15 – Assessing Good Character under the Citizenship Act
Jamila Hussain, Islamic Law and Society (Federation Press, 1999)
PAM3 – Refugee and Humanitarian Instructions
REASONS FOR DECISION
Chris Puplick AM, Senior Member
4 February 2022
RBRF (the Applicant) applied for Australian citizenship by conferral on 2 October 2018. That application was refused by a delegate of the Minister (the Respondent) on 19 May 2021. On 21 May 2021 the Applicant appealed to this Tribunal for a review of the refusal decision and the matter was heard initially by the Tribunal on 13 January 2022. Given the extent of evidence presented at hearing, it was necessary to adjourn the proceedings and recommence for a second and final day of hearing on 17 January 2022. After the hearing concluded, the Tribunal directed the production of further evidence from the Respondent and provided the Applicant an opportunity to respond to that material.
The hearing was conducted using the Microsoft Teams platform and in accordance with the Tribunal’s COVID-19 protocols. The Applicant was assisted by an interpreter in the Arabic language.
THE APPLICANT’S CURRENT STATUS
The Applicant was born in Iraq in 1978 and first arrived in Australia on 24 September 2014. On arrival he was the holder of a Spouse (Subclass 309) temporary visa which had been granted offshore. He was sponsored by his then wife (MB), a naturalised Australian citizen to whom he had been married on 18 October 2012 in Turkey.[1]
[1] Tribunal documents (T-documents) at 19.
Shortly after his arrival in Australia, his marriage broke down and on 24 August 2015 he applied for a Protection visa. On 21 September 2017 he was granted the Protection (Subclass 866) visa which he still holds.[2]
[2] T-documents at 7.
BASIS OF THE REFUSAL DECISION
The basis of the Respondent’s refusal of this application was that the Delegate found that the Applicant was not a person of “good character” as he was required to be under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).
The Delegate reached this conclusion because they found that the Applicant had provided false and misleading information in his application for the Protection Visa and in an application for an earlier provisional Partner visa (while offshore) for which he had applied on 22 October 2012.
The false and misleading information related to:
·the status of the Applicant’s mother, who he claimed in these applications was deceased when in fact, as he knew, she was alive and living in Australia; and
·making a claim that he had no siblings when in fact he had a sister, also alive and living in Turkey.
LEGISLATIVE FRAMEWORK – THE CITIZENSHIP ACT
The Act provides that a person may make an application to the Minister for citizenship by conferral.[3] The Minister must either approve or refuse the application.[4]
[3] Australian Citizenship Act 2007 (Cth) (Act) s 21(1).
[4] Act s 24(1).
An applicant must meet certain qualifications as specified in the Act[5] and, if they do, they must then undertake and pass the Citizenship Test[6] (unless they are exempted from so doing).[7] Once that is complete, a qualified applicant must make the Pledge of Commitment[8] (unless they are exempted from so doing) before their citizenship is finally granted.
[5] Act s 21(2).
[6] Act s 23A.
[7] Act ss 21(3)(d), (4)-(8).
[8] Act s 26.
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, residential status and breaches of the law.[9] None of which is relevant in this present application.
[9] Act ss 24(4)-(6).
In order to qualify for citizenship by conferral an applicant must satisfy a number of requirements which are set out in subsection 21(2) of the Act. The qualifying criteria are enumerated in paragraphs 21(2)(a) to (h).
(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.
Each of the criteria must be met by an applicant, and the usual practice of the Department is to consider the criteria in the order in which they appear in the Act.
In this case, the Respondent found that criteria at paragraphs 21(2)(a), (b), (c) and (g) had been met but that the criterion at paragraph 21(2)(h) had not been met.[10]
[10] T-documents at 8-9.
THE CITIZENSHIP POLICY STATEMENT AND THE CPIS
In deciding whether or not an applicant satisfies the criteria in subsection 21(2), a decision-maker must have regard to the Act, the Australian Citizenship Policy Statement (Citizenship Policy Statement) and the Citizenship Procedural Instructions (CPIs).
The Citizenship Policy Statement came into effect as of 27 November 2020, replacing the previous Citizenship Policy document. Citizenship Procedural Instruction 15 (CPI 15 – Assessing character under the Citizenship Act) deals with the assessment of issues of good character which is the central issue in this matter.
The Tribunal notes that the Citizenship Policy Statement and CPIs have been published by the government as a guide to decision-makers in the interpretation of, and exercise of powers under, the Act. The role of such policy is as an indicative guide only and the Tribunal is not strictly bound to apply it. Although the Tribunal is not bound to apply it, it is government policy and the Tribunal should consider it if it is consistent with the Act and unless there are cogent reasons not to do so.[11]
[11] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634at 640.
In addition, the Tribunal, standing as it does in the shoes of the original decision-maker but making a de novo assessment of the evidence,[12] may take into account any other relevant factors, including where appropriate any relevant factors or evidence which have arisen since the original decision was made and may not have been available to the original decision-maker.
[12] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
Further, in 1985, the Tribunal noted:
Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.[13]
[13] ER Aston and Y Aston and Secretary To the Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366 at 376.
Similarly, in Gbojueh the Federal Court noted:
At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly.[14]
[14] Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883 at [39].
In Elias, this principle was expressed as:
The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will “normally” be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.[15]
[15] Elias v Commissioner of Taxation [2002] FCA 845 at [34].
In relation to the former citizenship policies, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
I do not accept the Australian Citizenship Instructions[16] are useful aids to the interpretation of the statute. At best, they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[17]
[16] These “Instructions” (last made on 26 February 2015) have since been replaced by the Australian Citizenship Policy Statement. The current set of Instructions are a different form of advice to decision-makers.
[17] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
More recently this matter was addressed by Besanko J as follows:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case. Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory. The important matter is compliance with the terms of the relevant statute.[18]
[18] MDXJ v Secretary, Department of Social Services [2020] FCA 1767 at [17] (footnotes and citations omitted).
GOOD CHARACTER
Paragraph 21(2)(h) of the Act requires that a person be “of good character at the time of the Minister’s decision on the application.” Making this finding imputes a positive finding on the part of the decision-maker.
As mentioned, the Minister's delegate found that the Applicant was not of good character and this was the sole identified basis for the refusal of his citizenship application.
The term “good character” is, unhelpfully, not defined in the Act and so the Tribunal must rely on the law developed by the Courts and guidance in the Citizenship Policy Statement and the CPIs (particularly CPI 15).
As to the definition of good character, CPI 15 cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs, where the Court stated:
Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community.[19]
[19] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84 at 94 per Lee J.
The Tribunal has further found that evidence of what a person says, does or what they are heard to say or seen to do should be taken as indication of their acceptance of the values and norms to which they are expected to adhere and be loyal to. As stated by Deputy President Forgie:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character. Doing good works and acts of kindness may be another. How a person behaves when trouble finds them or they are confronted by situations that make them uncomfortable may be yet another. The ways are not finite.[20]
[20] Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [120].
An elegant encapsulation of what the authorities have identified as the hallmarks of “good character” was given by O’Bryan J in BOY19 as follows:
The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.[21]
[21] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [51].Citations in original omitted.
In Irving the Court also stated:
The question whether a person is or is not of "good character" is primarily an issue of fact. It is not the function of this Court to form its own view of such a fact. Provided that the decision-maker has approached the issue correctly, has acted in accordance with the principles of procedural fairness, has taken into account all material factors, has disregarded immaterial factors and has reached a decision which was open on the material, which is to say that the decision made was not one which no reasonable decision-maker would have made, then this Court will not grant an order of review. ……..
It should also be observed that the term "good character" is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute. See Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, "good character" refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.[22]
[22] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84 at [424-5] per Davies J.
CPI 15 itself goes on to outline what the characteristics of good character might amount to. These are set out, at some length, as expecting that applicants would (inter alia):
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
ogiving false names and/or addresses to police.
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide;
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
CPI 15 elaborates, by attaching to the phrase “enduring moral qualities”, further qualifications, namely:
·characteristics which have endured over a long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of Australian society.
THE APPLICANT’S CONDUCT – THE STATUS OF HIS MOTHER AND SISTER
The Respondent relies upon four instances where the Applicant provided false or misleading information to the Department:
(a)On 22 October 2012, the Applicant applied for a Provisional Partner visa while offshore. When asked at question 36 of the form as to the details about his mother, the applicant declared that his mother was “deceased”.[23]
(b)On 24 August 2015, the Applicant applied for a Protection visa. At question 12 of the relevant form, the Applicant declared that he did not have any close relatives (including parents) who were in Australia at the time of application.[24]
(c)On 4 December 2015, the Applicant attended an interview with the Department for the purposes of assessing his eligibility for the Protection visa. At that interview, the Applicant maintained that his mother was “deceased” but admitted that he had a sister who was alive and living in Turkey.[25]
[23] T-documents at 20.
[24] Respondent’s Tender Bundle at 67.
[25] Ibid at 36-37.
In addition, there is the fact that when the Applicant completed his Form 80 (Personal circumstances form) on 17 December 2012 not only did he repeat his statement that his mother was deceased, he also responded to a question about his siblings by stating “I have no brother or sister”.[26]
[26] T-documents at 119-121.
In all these instances the Applicant knew these statements were untrue.
What is of particular concern is the Applicant’s Form 80 declarations and the additional material which was attached with the Form. This matter is discussed in detail below.
THE ISSUING OF THE PROTECTION VISA
On 26 May 2016 the Applicant was sent a letter by the Respondent indicating that it had received some adverse information which called into question some of the claims made by the Applicant in his citizenship application.[27] He was offered the opportunity to comment on this adverse information and on 1 June 2016 he did so in the form of a Statutory Declaration.
[27] T-documents at 41.
It reads as follows:
“1. I make this statement in relation to my protection visa application.
2.I state that the information contained in my protection visa application with respect to my mother was incorrect and that my mother is alive and living in Australia.
3.This incorrect information was conveyed in my partner application and in my protection visa application. Both forms were filled out by my ex-wife (who completed my partner application) and my previous migration agent (who completed my protection visa application.
4.On both occasions I was not aware that my mother was stated as being deceased. I only became aware of this fact just prior to my protection visa interview.
5.At the interview I stated that my mother is diseased (sic) because I was simply scared believing that such inconsistency may lead to a negative outcome.
6.I regret my actions and state that at the interview, I should have corrected the record in relation to my mother.”[28]
[28] Ibid at 45.
In answer to questions from the Tribunal the Applicant resiled from the use of the term “migration agent” (as referred to in paragraph 3 above) and attributed its use to a “misunderstanding” by the person helping him complete the Statutory Declaration who, he says, was a community worker and not herself either a lawyer or a migration agent.[29]
[29] Transcript dated 17 January 2022 at 89, lines [36]-[46].
The next step in the process was for the Department to consider the protection visa application, informed by details provided by the Applicant at his interview on 4 December 2015 and the Statutory Declaration of 1 June 2016. The Minister’s Delegate determined:
“Family and section 57 response
I asked the applicant to provide further information in relation to his family and he stated and [sic] both his parents died of natural causes and that he has a sister who is living in Turkey. He stated that his father died of a heart attack in 2008 and that he is not sure but he thinks his mother died of cancer in 2010. He stated that his sister is studying in Turkey and that he supports her financially. I asked the applicant if he had any other family members in Iraq and he stated “no”.
The department received information that the applicant’s mother was alive and well in Australia and had applied for Australian citizenship. The applicant was sent a natural justice letter to respond to the information under section 57 of the Act on 26/05/2016. The applicant responded to the request on 08/06/2016,[30] the response indicated that he lied about his mother being deceased during the interview because he was scared that telling the truth would adversely affect his claims for protection.
I have considered the applicant’s responses and although it raises concerns in relation to his credibility and willingness to lie in order to strengthen in claims for protection, I do not consider that the inconsistency is fatal in relation to his claims for protection as a whole.”[31]
[30] Presumably the date of the receipt of the Statutory Declaration of 1 June 2016.
[31] Respondent’s Tender Bundle at 36-37.
In the event, the Applicant was found to be a genuine refugee with a genuine fear of persecution and his Protection visa was granted.
It was the Applicant’s oral evidence that it was only upon reading the papers in preparation for the departmental interview that he became aware of the errors in that paperwork related to the status of his mother, and presumably his sister.[32]
[32] Transcript dated 13 January 2022 at 17, lines [15]-[21].
However, at the 4 December 2015 interview, while the Applicant corrected his previous statements about his sister, he maintained, and indeed repeated the false statement that his mother was deceased.
FROM PROTECTION VISA TO CITIZENSHIP APPLICATION
It was there that the matter rested until the Applicant lodged his citizenship application on 2 October 2018, which he did electronically.[33] In this application he indicated that his mother was alive and resident in Australia and that he had a sister resident in Turkey.
[33] T-documents at 46.
Following this the Applicant received a letter (undated) from the Department inviting him to comment on adverse information, namely that he had previously made claims that his mother was deceased and had denied that he had any other siblings.[34]
[34] Ibid at 118-120.
In response to this letter the Applicant provided to the Department some 20 further documents (detailed in the Respondent’s SFIC at [10]), including a further Statutory Declaration by the Applicant dated 3 May 2021.[35] It states, inter alia:
[35] Ibid at 136-137.
“So, when I mentioned that address in my arrival card, I mentioned the address of my ex-wife and my sponsor as she used to live at the address mentioned above.
In regards to the information filled in my partner visa application related to my mother and my sister, as well as the identity document provided in my partner visa application. Kindly note, my application was prepared and lodged by my ex- partner [MB]. When I was in Turkey with her, she used to go to translate the documents and fill the applications by herself. She only asked me to sign the forms as requested at that time. At that time, I did not have any knowledge of the Australian law and my English language was extremely poor. As you mentioned in your letter, that a natural justice letter was sent to me on 26/05/2016 and I have replied to this letter on 01/06/2016 that.
1.The incorrect information was conveyed in my partner application and in my protection visa application, Both forms were filled out by my ex-wife (who completed my partner visa application) and my previous migration agent (who completed my protection visa application.
2.On both occasions I was not aware that my mother was stated as being deceased. I only became aware of this fact just prior to the protection visa interview.
I have not declared that my mother is alive in my protection visa interview fearing from that the inconsistency in my answers my lead to a negative outcome as I feared persecution in Iraq. Please be advised the inconsistency in my response to all previous applications in which I have lodged with the department of home affairs, have been treated with the department prior to me being granted my protection visa application. The department of home affairs were satisfied, and they granted me a favorable decision and they also granted me a protection visa. I regret and show great remorse of my actions and based on that the department granted me the protection visa.
Kindly note in my current citizenship application, I have not provided any misleading information to the department. I declared my mother and my sister, and I have provided the passport details of my mother. I updated all the information when my son was born after I lodged the application. I have always wanted to be a good citizen of Australia and this will not change.”
Once again, the statement about the migration agent remains in the Declaration and again the Applicant pointed out that immediate responsibility for the provision of false information lay with another person.
It was after consideration of all of this material that the Minister’s Delegate made the decision on 19 May 2021 to refuse the citizenship application.
DISCUSSION
The Applicant’s Mother
The Applicant’s mother, throughout this narrative has all the characteristics of Schrödinger’s eponymous cat being apparently both alive and dead at the same time.
His mother (GHY) had fled to Turkey from Iraq on 17 March 2011.[36] She lodged an application for a Refugee and Humanitarian (Class XB) Woman at Risk (Subclass 204) visa in Ankara on 7 June 2011 and in December 2011 this visa was granted by the Respondent.[37] The Applicant had already been granted refugee status by the United Nations High Commissioner for Refugees. She arrived in Australia on 15 March 2012.[38]
[36] Respondent’s Tender Bundle at 6.
[37] Ibid at 1.
[38] Applicant’s Statement of Facts, Issues and Contentions dated 20 October 2021 at [8].
In her application for the Subclass 204 visa, as it appears in the Section 37 documents (T-documents), the Applicant’s mother failed to declare that she had ever been married. Rather, she concealed the fact. In answer to Question 8:
“Have you or any other person included in this visa application previously been legally married, in a de facto relationship or in a customary marriage that is not legally recognised?”[39]
she clearly ticked the box marked “No”.
[39] Respondent’s Tender Bundle at 11.
She similarly ticked the “No” box in answer to Question 9:
“Do you or any other person included in this application have children from a previous marriage/relationship, including customary/traditional marriage?”[40]
[40] Ibid at 10 and 14.
In all her documentation the woman in question lists her name as GHY, with Y being the name of her father HYN.[41] None of her documentation refers to a named shared with her husband and son, this Applicant.
[41] Ibid.
Again, she denied that she had any “non-dependent children”,[42] although in reality she had a son (the Applicant) and a daughter (ANS) who were, at the time of her application, still living in Iraq. This is despite the fact that the form in question states clearly, “[y]ou must list ALL relatives, whether they are living, deceased, or their whereabouts are unknown.”
[42] Ibid at 14.
The Applicant himself fled Iraq for Turkey in September 2012 and his sister arrived there some months later in early 2013, both arriving there after their mother’s departure.
GHY listed all her other relatives, namely her parents and three siblings as “deceased”.
She also indicated in her application that she had a “niece” resident in Australia, namely MB for whom she provided an address in Corrimal, New South Wales, Australia.[43]
[43] Ibid at 18.
The Applicant puts to the Tribunal that it should not take the designation “niece” literally, but rather accord it a meaning more akin to that used in Iraqi communities as implying a relative within a broader family/clan/tribal context, but a related “family member” nonetheless.[44]
[44] Transcript dated 13 January 2022 at 41 lines [11]-[39].
Further, in a statement accompanying that application, GHY set out details of her life in Iraq and the circumstances which caused her to fear for her life, especially after the death of her husband in 2008. Her statement includes detailed reference to a nephew but also reveals that she was at some stage married:
“I had a nephew his name is [GMH]… he took responsibility to take care of me and supporting me, after my husband death I moved with my nephew to his house… he has been murdered by Mahdi army by sniper shot in 2011… after my nephew death whom he was the only one remain for me and taking care of me after my husband…[45]
[45] Respondent’s Tender Bundle at 32.
At no stage in her narrative did GHY mention the existence of either her son (then aged 33 years) or her daughter (then aged 25 years).[46] At the time of her husband’s death and that of her nephew, both of them were living in Iraq.
[46] T-documents at 55.
The Department’s website states that the Woman at Risk (Subclass 204) visa is “for women who do not have the protection of a partner or a relative and are in danger of victimisation”.[47] It cannot be applied for in the country of residence and the applicant, in most cases, must have already been granted refugee status.
[47] Australian Government Department of Home Affairs, ‘Refugee and humanitarian program: Refugee visas (offshore)’ (Web Page) <immi.homeaffairs.gov.au/what-we-do/refugee-and-humanitarian-program/refugee-visas>.
There is one particular document before the Tribunal which sheds some light on the circumstances of the Applicant’s mother but which is otherwise all but incomprehensible.[48]
[48] T-documents at 120.
The document appears to be part of the Department’s invitation to comment on adverse information in response to the Applicant’s citizenship application (Invitation to Comment) as part of the Tribunal documents (T-documents) at page 120. What appears there are extracts of two separate documents which, looked at on the page, could easily be taken as a single document. On closer inspection, it became clear that only part of these two documents, as included in the Invitation to Comment which was reproduced and placed before the Tribunal.
This is grossly misleading. The Tribunal required the Respondent to produce to it, after the hearing, a complete copy of the Form 80 (only extracts of which appear in the Invitation to Comment) and the complete documents which accompanied this form. It should not rest with the Tribunal to have to chase key documents or full versions of relevant documents which appear only in part in the Respondent’s material, but upon which it has placed heavy reliance in coming to an adverse decision on the Applicant.
The complete second of these documents sheds an entirely different light on that which might be taken from the partial extract only.
In the Department’s Invitation to Comment (undated), there is a photocopy of what purports to be part of an official identity document issued by the Iraqi Ministry of Internal Affairs to or for the Applicant, which was apparently provided to the Department by the Applicant himself attached to his Form 80. Presumably in its correspondence (Invitation to Comment) the full document was provided but this is not clear, nor is it entirely material.
This identity document is accompanied by a translation which itself appears to bear a stamp incorporating the Crescent and Star emblem used on official Turkish documents. When the full document is examined it is clear that the document was subject to translation by an official “Translation Office” in Turkey.
This document purportedly states, “Is mother living or dead: Deceased”. The Applicant not only denies any knowledge of this document but further suggests that this entry has somehow been added to it.[49] It is clear from the document that the latter part of the first document is hand-written rather than printed and if this false claim has been added in this fashion, then the document having been in the hands of only the Applicant and MB,[50] it follows that only one of them could have made the necessary additions.
[49] Transcript dated 13 January 2022 at 50, line [45] to 51, line [7].
[50] Ibid at 50, lines [12]-[26].
In that respect the Tribunal is cognisant of the Applicant’s claim that he left the translation, of various documents, while in Turkey, in the hands of his then wife. Exactly what this document is, whether it is genuine or not, or whether it is a genuine document altered in order to give a deliberately false impression is a matter currently incapable of resolution.
However, in the event that the document was in any way altered so as to imply or claim that the Applicant’s mother was deceased, the most likely source of that alteration would, logically, be the Applicant.
It is the second document which is however of far greater moment. It appears to be a certified translation of the aforementioned Iraqi document into both Turkish and English. It is fully printed and has no hand-written emendations or additions. It is dated “30 Ocak 2013” (30 January 2013).
It states as follows:
“According to certificate of death of 21/10/2008 with number 344502
[NS] deceased.”
This accords with the Applicant’s form 80 where, at Question 51 he records his father’s name as NS and date of death as “21-Oct-2008”.
The document goes on:
“According to certificate of death of 04/09/2004 with number 133496
[GH] deceased.”
This accords with the Applicant’s Form 80 where, at Question 52 he records his mother’s name as GH[51] and date of death as “04-Sept-2004”.
[51] Note: The Applicant’s mother’s name appears here as GH, but throughout the material in this matter is alternately referred to as GHY.
In other words, the Applicant submitted a Form 80 and an attachment, both of which declared his mother to be deceased as of 4 September 2004. The former was completed by the Applicant (and signed by him) and the latter purported to be an official Iraqi document (accompanied by Turkish and English translations) with a numbered death certificate for his mother.
Only two conclusions can be arrived at from this evidence. Either the Applicant has knowingly submitted two false documents, one of which may be in fact be partially or entirely forged, most likely by him; or else his mother is deceased and the person purporting to be his mother who was granted a Woman at Risk visa and is now alive and living in Australia is an imposter.
To the extent that the sworn evidence before the Tribunal (the credibility of some of which from the Applicant is open to question) establishes that the person purporting to be his mother who is residing in Australia is indeed his mother, it is the first of these explanations which must be preferred.
Regardless of that, what appears to be the case is that GHY was granted a Subclass 204 visa on the basis that, among other things, she did not have a male relative to protect her from persecution in her home country.
This was not true – she had an adult son and did not declare that fact.
The Applicant’s representative put to the Tribunal that GHY did not have a male relative in Turkey to protect her, which was true at the time of her application, and she was judged (by the Case Officer) to be vulnerable to persecution in Turkey.[52]
[52] Transcript dated 17 January 2022 at 99, lines [7]-[16].
That is not the requirement for a Woman at Risk visa.
The relevant criteria are set out in Schedule 2 of the Migration Regulations 1994 (Cth) (emphasis added):
204.224
The Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:
(a) in the case of an applicant who met the requirements of subclause 204.211(2) at the time of application--the extent of the applicant's connection with Australia; or
(b) in any other case--the following:
(i) the degree of persecution to which the applicant is subject in the applicant's home country; and
(ii) the extent of the applicant's connection with Australia; and
(iii) whether or not there is any suitable country available, other than Australia, that can provide for the applicant's settlement and protection from persecution; and
(iv) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.
Sub-clause 204.211(1) requires that the Applicant be “a female person” who has been registered with the United Nations High Commissioner for Refugees (UNHCR) and is “living in a country other than her home country.” Alternately, sub-clause 204.211(2) provides that the Applicant’s entry into Australia has been proposed in accordance with an approved form by an Australian permanent resident or citizen who holds or has held a Subclass 204 visa and is a member of their immediate family.
“Home country” is defined in the Definitions regulation of the Migration Regulations (at 1.03) as follows:
“home country”, in relation to a person, means:
(a) the country of which the person is a citizen; or
(b) if the person is not usually resident in that country, the country of which the person is usually a resident.
Paragraphs (b) and (c) of sub-clause 204.211(2) make it clear that the applicant must be “a member of the immediate family of the proposer” at the date of the grant of the visa and then “continue to be a member of the immediate family of the proposer”.
In her application GHY declares her proposer, MB to be her niece. This of course would make her the cousin of the Applicant. First cousin marriages are not uncommon in countries like Iraq or Turkey and so it becomes a matter of concern when the Applicant puts to the Tribunal that his biological relationship with MB is something less than immediate.
It appears to the Tribunal that GHY met the sub-clause 204.211(2) conditions but as her claim needed to be assessed on the basis of her fear of persecution in her “home country”, which was Iraq (details of which she outlined in her application),[53] deliberately disguising that she had a male relative in Iraq (her son) otherwise may have disqualified her for the Woman at Risk (Subclass 204) visa.
[53] Respondent’s Tender Bundle at 23.
Had she revealed the presence of her son on her application form she may well not have qualified for consideration for this particular visa.
The Tribunal rejects any suggestion that Turkey was GHY’s “home country” for the purposes of the visa assessment as, at the time of her visa application, she had lived there for less than three months.
The Tribunal also notes that making an application for a Woman at Risk visa gives the application priority. The Refugee and Humanitarian Instructions state (at [3.3]) that this visa is to be given priority assessment, second only to Emergency Rescue (Subclass 203) visa applications.[54]
[54] PAM3 – Refugee and Humanitarian Instructions.
This application involved an act of deception and from it arises some of the subsequent behaviour of the Applicant. It was the first thread in what turns out to be a tangled web of contradictions.
The Applicant’s Marriage
The Tribunal has considerable difficulty in accepting the Applicant’s narrative of this relationship as presented. In his Application for migration to Australia by partner form, the Applicant gives details of a previous marriage (lasting between 2003 and 2008) before declaring that he and MB were married on 18 October 2012 in Istanbul, Turkey.
The narrative put to the Tribunal is to the effect that the Applicant and his family knew MB and her family in Iraq when the Applicant was quite young. It is claimed they first met in primary school in 1985 when he was aged 7 and she aged 6 years. Eight years later (aged 15 and 14) it is claimed they began “a relationship” and they then decided (for the “first time”) two years after that they made “the decision that [they] both wanted to commit to a long-term relationship.”
MB subsequently appears to have departed Iraq at some stage and the Applicant lost touch with her. It appears that at some time she settled in Australia, becoming a citizen in November 2007. It was the Applicant’s testimony that she had lived in Australia at least 18 years.[55]
[55] Transcript dated 13 January 2022 at 32 lines [23]-[24].
In the meantime, the Applicant had married another woman in September 2003 and divorced her in 2008, with no children from the marriage while MB had also been in three relationships:
·the first was an engagement which resulted in one daughter and ended in 2000;
·the second was an engagement which resulted in one son and ended in 2004; and
·the third resulted in a marriage with no children which ended in 2012.
The Applicant and MB then somehow managed to reconnect on one of the social media platforms while he was still in Iraq, and, at a distance decided to resume a relationship with a specific date given as 2 July 2012.[56] The Applicant then moved to Turkey in September 2012 and remained there until September 2014 during which time MB visited him on four occasions. Indeed, if the Applicant arrived in Turkey in September 2012 it was only one month later that MB arrived, and they were married.
[56] T documents at 29.
In the Partner application form the Applicant stated that “[w]e are planning to live together in Australia” and in answer to the question “[d]id you enter into this relationship with your finacé(e)or partner solely to gain permanent residence in Australia?” he stated “[n]o”.[57]
[57] Idem.
On his arrival card filled in on his arrival in the country the Applicant gave as his intended address the address in Corrimal at which MB was residing and where he knew his mother had also, at least at some stage, resided.
“…regarding my coming passenger card when I first arrived in Australia about my address which was […] Corrimal, NSW… I was honest in answering the question as this was the address of my ex-partner [MB]. My mother resided with her at this address for a few weeks when she first arrived in Australia. So, when I mentioned that address in my arrival card, I mentioned the address of my ex-wife and my sponsor as she used to live at the address mentioned above.”[58]
[58] Applicant’s Statutory Declaration dated 3 May 2021, T-documents at 136.
Once again the Applicant states in evidence that the person who assisted him in the completion of this form misunderstood what he told them and that his mother did not “reside” with his ex-wife but was only a “guest” and merely used the Corrimal address as her point of correspondence contact.[59]
[59] Transcript dated 17 January 2022 at 89, lines [5]-[12].
In any event, the Applicant did not go to that address. Rather, as he had previously arranged, he was collected at the airport by a distant relative AOM.[60] This gentleman gave written and oral evidence to the Tribunal that another family connection in Australia had asked him to meet and take care of the Applicant on his arrival in Australia. He did so, and the Applicant resided with him at his home in Auburn (NSW) for some time.[61] He also provided financial support for the Applicant and helped him find a job.
[60] AOM described this as “my father is a cousin to his mother”.
[61] Transcript dated 13 January 2022 at 77, lines [40]-[44].
The evidence of AOM on this point is significant. It was to the effect that the Applicant himself had been in contact with him (from Turkey and Thailand) to ensure that he (AOM) was aware of the Applicant’s arrival details and was at the airport to meet him.[62]
[62] Ibid at 76 line [45] to 77, line [2].
This, together with the pleas to AOM from the Applicant’s mother, persuades the Tribunal that the Applicant had no intention of residing at Corrimal on his arrival – he was to be accommodated with or by AOM and his declaration to the contrary was knowingly false.
The relationship between the Applicant and MB broke down almost immediately (according to the Applicant’s “within a month”[63]) and they were divorced. There is no evidence they ever lived together in Australia. The Applicant told the Tribunal that in the first instance he had been in contact with MB before his arrival in Australia and she had told him, in effect, that she would not welcome him to her home, and he should seek accommodation elsewhere.
“So, I bought her a very nice, well-known, famous, Turkish, gold gift. As to - that, gold, in Turkey, is very famous. And, I get her all these presents. But, she threw them back in my face. She did not accept them from me. I don’t know what the reason.”[64]
[63] Ibid at 40, lines [24]-[31].
[64] Transcript dated 17 January 2022 at 91, lines [31]-[35].
He says that he made an effort to save the relationship but to no avail.
The Applicant told the Tribunal that he had then both divorced his wife by pronouncement of the Islamic formula of talaq[65], thereby severing the marriage bonds religiously in addition to obtaining a divorce decree through the Australian legal system via the Court in Wollongong.
[65] Jamila Hussain, Islamic Law and Society (Federation Press, 1999) ch 7.
It was at this stage that the Applicant made his Protection visa application.
The Applicant has put much of the blame (see below) on the shoulders of his ex-wife for the incorrect filling out of various forms.[66] One of those forms was the Partner visa form which recorded the Applicant’s mother as deceased.
[66] Transcript dated 13 January 2022 at 36, lines [26]-[29] and at 51, lines [43]-[46].
For his ex-wife to have completed such a declaration she must have been advised that this was the case by the Applicant, which he denies. He must however have supplied her with most the details otherwise required to be entered on the form such as his telephone numbers, schooling details and details of his previous marriage.
On the other hand, his ex-wife may not have known the Applicant’s mother’s status. This of course cannot be true because according to the Applicant’s own Statutory Declaration, his mother had resided with the ex-wife on her arrival in Australia in April 2012, or at the very least had been in contact with her if not actually residing with her, noting that the Partner visa application form is dated October 2012.
Somebody was deliberately not telling the truth.
The Tribunal put directly to the Applicant that it had concerns about the genuineness of his marriage to MB.[67] He rejected this to the point of stating that on one of her visits to Turkey the couple thought that she might be pregnant and that this was a source of joy to them.[68]
[67] In light of the principle laid down in Browne v Dunn [1893] 6 R 67.
[68] Transcript dated 17 January 2022 at 92, lines [18]-[23].
The Tribunal nevertheless has concluded, in light of all the evidence, that the whole saga of the Applicant’s marriage to MB indicates a contrivance, the purpose of which was to facilitate the Applicant’s entry into Australia.
The Applicant’s Mea Culpa
The Applicant has freely admitted, on a number of occasions that he provided false and misleading information to the Department and he has made several direct expressions taking responsibility for such actions. He has equally made several expressions of remorse and contrition.[69] He repeated these on several occasions in evidence to the Tribunal.[70] The Applicant has also demonstrated a degree of insight into his past behaviour and appreciates that his actions serve to undermine the integrity of Australia’s immigration system.
[69] Applicant’s SFIC at [23]-[28].
[70] Transcript dated 13 January 2022 at 14, lines [31]-[35].
The Tribunal gives the Applicant credit for this behaviour but feels that this credit must be somewhat qualified by the repeated insistence by the Applicant that false statements were made on documents primarily because he had failed to obtain professional legal advice or engage the services of a qualified migration agent. As the Respondent rightly points out, filling in a form which requires simply the provision of personal data known only (or primarily) to the applicant is not something for which external assistance is required, beyond that which might result from a degree of illiteracy in the English language.
The Applicant in Mitigation
The Applicant, having conceded that he has provided false and misleading information claims that the reason for so doing was, firstly that he was unaware of the provision of that information when forms were filled out by third parties and secondly, when he was aware of the issue he continued to give some false information:
·“fearing from that the inconsistency in my answers my lead to a negative outcome as I feared persecution in Iraq”[71] and
·“…I was simply scared believing that such inconsistency may lead to a negative outcome.”[72]
[71] Applicant’s Statutory Declaration dated 3 May 2021, T-documents at 136.
[72] Applicants Statutory Declaration dated 1 June 2016, T-documents at 45.
It is difficult from these statements to discern the extent to which the Applicant’s concern was for his own position or that of his mother, or both. On the face of them, they relate directly and personally to the Applicant, but the evidence led by the Applicant’s representative focussed on the possible outcomes for the Applicant’s mother as much as for his own.
It may be understandable that a person supplies false information in a first instance but seeks to shift blame when confronted over such information. However, in this instance when made aware of the possibility that incorrect information had been supplied, the Applicant (at least in respect of his mother) not only persisted but repeated the falsehood on at least one occasion when he had the opportunity to correct the record.
TESTIMONY FROM CHARACTER WITNESSES
The Tribunal heard testimony from SS, the Applicant’s current partner.[73] She attested that the Applicant and herself had been together for about one year but were currently separated and with her having custody of a son, approaching two years of age. She stated that the Applicant was a good father, hard-working and a generous provider. He had access to the son on a regular basis and was deeply engaged in his welfare. She told the Tribunal that she was aware of the fact that the Applicant had given false evidence to the Government department but was unsure as to the exact nature of this evidence. She stated that she had regular contact with the Applicant’s mother and regularly visited her, usually with her son.
[73] T-documents at 132; Transcript dated 13 January 2022 at 66-72.
AOM[74] gave evidence in support of the Applicant who he described as a “relative”, although this fact was not initially declared by the Applicant. AOM works at the Western Sydney Community Centre and, as described above, first met the Applicant upon his initial arrival in Australia and thereafter provide him with accommodation, financial support and assistance in finding employment. He had in fact known the Applicant as a child in Iraq.
[74] AOM’s Statement dated 18 August 2021, Applicant’s Combined Witness Statements, unpaginated; Transcript dated13 January 2022 at 73-79.
Importantly, AOM denied the claim by the Applicant that it was he who had filled in the Applicant’s Protection Visa application.
“[Mr Issa, Applicant’s representative] Did you assist [RBRF] completing his protection visa application?--- No. I didn’t know about it.”[75]
[75] Transcript dated 13 January 2022 at 73 lines [30]-[31].
AOM had some contact with Applicant’s mother and was aware of the details of his marriage breakdown.
“[Mr Issa] Yes, [AOM], when he first arrived in Australia, how would you describe his mental state?---Look, he came in 2014, and I went to pick him up in the airport because of his partner issue.”[76]
[76] Ibid at 75, lines [13]-[15].
AOM gave the following evidence regarding both the Applicant and his mother contacting him prior to the Applicant’s arrival in Australia:
“[Senior Member] You say that you were good enough to meet [RBRF] when he arrived at the airport?---Yes.
And so, you’ve been in contact with him, and he had told you in advance, obviously, the details of his flight and his flight arrival and all of that?---Correct. I picked him up from the airport.
Yes, and so how long had you been in touch with him before he arrived? Had you been in touch with him for many months, many years, a few weeks?---A couple of months…[77]
And how did he know how to get in touch with you?---Look, I’ll tell you another story. I had another relative, he came to study in - he came and studied in Australia, all right? His mum call me through the family connections, got my number. His mum called me, and I know the guy also saying he was a kid, and he told me, ‘Please, look after my son. He’s coming here for study. He does not know anyone. I’m counting on you.’”[78]
[77] Ibid at 76, lines [25]-[34].
[78] Ibid at 77, lines [4]-[9].
He told the Tribunal that the Applicant had told him about a “mistake” that had been made in the filling out of various application forms but had little or no details to reveal beyond that.
AMS[79] works in the same transport depot as the Applicant and has known him for some three years. He does not know members of the Applicant’s family and is only vaguely aware of the Applicant’s life story. He attested that he had been told that the Applicant had given false statements to the Department but was not aware of the exact nature of them.
[79] AMS’ Statement (undated), Applicant’s Combined Witness Statements, unpaginated; Transcript dated 13 January 2022 at 80-82.
In addition to the witnesses who appeared in person, the Applicant has submitted testimonials and references from a number of friends and colleagues and his General Practitioner. They are all supportive of the Applicant as a hard-working and reliable person and a good father. Some of them refer specifically to the failure of the Applicant to “mention him [sic] mom” (BAA) in his application forms whereas others do not evince any awareness of the matters now before the Tribunal.
The Applicant urges that these various statements be taken as demonstrating the good qualities of the Applicant and the Tribunal accepts this but equally accepts the Respondent’s point that they fail to go specifically to address the issue of the Applicant’s conduct in providing false information and how this might be viewed in relation to assessment of character requirements.
The Tribunal notes that the Applicant in his SFIC (at [40]-[48]) draws attention to what he claims to be evidence of his good character based upon his record of employment in Australia; the absence of any criminal record; his payment of child support; his expressions of remorse; and his otherwise exemplary behaviour as a member of the Australian community. The Tribunal accepts these submissions and gives due credit to the Applicant accordingly.
FAILURE TO CALL WITNESSES
The Applicant’s representative put to the Tribunal that it should draw an adverse conclusion in respect of the Respondent’s submissions on the basis of the Respondent’s failure to call either the Applicant’s mother or his ex-wife as witnesses.[80]
[80] Jones v Dunkel (1959) 101 CLR 298.
The Tribunal does not accept this submission.
In respect of GHY, both the Applicant and his current partner gave evidence to the effect that she suffers from some degree of forgetfulness or Alzheimer’s disease, and to that extent her testimony might be regarded as of limited value. She would also have been pressed to answer questions about her original Woman at Risk visa which might have incriminated her.
With respect to MB, the Tribunal notes that she would in all likelihood have been hostile to the Applicant given the nature of their failed relationship and the accusations in effect made against her by the Applicant. Again, there would have been matters of potential self-incrimination.
The Tribunal accepts that had both parties been able to give clear and objective evidence, some of the issues before the Tribunal would have been resolved, but many would have remained contested and left as matters of conflicted credibility.
It could equally be said that the failure of the Applicant to adduce any evidence from his mother was similarly unhelpful.
FALSE AND MISLEADING INFORMATION
It needs to be understood that the Australian Citizenship Act 1975 (Cth) and the Migration Act 1958 (Cth) are very different pieces of legislation. Definitions of, and matters related to character including what constitutes “good character” are defined differently in each Act. What is of concern to the Tribunal in this matter are only the provisions of the citizenship legislation.
Each Act also deals differently with matters related to the provision of information, including false or misleading information.
In relation to this matter under the Australian Citizenship Act, I dealt with this matter at some length in the determination in Fang where I said:
94. The Tribunal therefore starts from the premise that there can be no greater public interest than in securing the territorial integrity of the nation.
96. Such territorial integrity is of course undermined if a nation is not able to determine who enters the country and passes through its borders.
97. This in turn requires that 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.[81]
[81] Fang and Minister for Immigration and Border Protection [2018] AATA 3686.
This Tribunal has set out clearly its view about the provision of false or misleading information to the Department in migration/citizenship matters:
Many of the provisions of the section [i.e. in the Migration Act] 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.[82]
[82] Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35].
More recently, that statement has been quoted again with the Tribunal going further to add:
I believe that this principle also adheres when an eligible non-citizen is applying for Australian citizenship. There is a reasonable expectation of the Australian people that a non-citizen will obey Australia’s laws and tell the truth to immigration officials.[83]
[83] Mohammed and Minister for Immigration and Border Protection [2018] AATA 687 at [39].
In Nguyen[84] I came to a conclusion, affirming a denial of citizenship, in the following terms:
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.[85]
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 to placing themselves in the hands of deceitful third parties.
[84] Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082.
[85] Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [120].
In Taradel, the Tribunal noted:
“I agree that dishonesty in dealings with the department is a very serious matter. The integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history. The department is not in a position to know what applicants know, after all. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly. But I must also look to any prejudice to the applicant and others arising from the cancellation of his citizenship.”[86]
[86] Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [23].
An attack on the fundamental integrity of the immigration system is in effect, an attack on the interests of all Australians:
For the reasons enumerated earlier, the Applicant’s conduct has harmed the interests and capacity of government to properly operate the immigration system. Thus, indirectly, her conduct has harmed the Australian community that effectively funds the operation of that system and has every right to refuse to tolerate any conduct compromising an organ of its government.[87]
[87] Eidson and Minister for Immigration and Border Protection [2017] AATA 1354 at [38].
DISCUSSION
This application is shot through with information some of which is false and was submitted in the knowledge that it was false, and some of which is misleading either by error or omission.
In many ways it starts with GHY’s application for her Woman at Risk (Subclass 204) visa which, as the Tribunal has noted, materially omits a key piece of information, namely that GHY had an adult son, the Applicant. It also fails to make clear that she was married (widowed) or that she had ever shared the same surname as the Applicant. The Tribunal accepts it is entirely speculative to conclude that, had this information been provided to the Australian Government, the visa in question might not have been issued, but there are strong grounds (in the specific provisions of the Migration Regulations) to believe that this would have been the case.
There is then the question of the relationship of GHY with MB which in its turn raises the question of the exact nature of the relationship between MB and the Applicant. This then morphs into to question of the extent to which the Applicant’s marriage to MB was genuine or was contrived for the purposes of advancing or facilitating his original (Partner) visa application.
By concealing the existence of her son, and by advancing a particular version of a “marriage” relationship, both mother and son obtained advantages in promotion of their visa applications to which they might not otherwise have been entitled.
Once these courses of action had been embarked upon it became necessary for some of the underlying falsehoods to be maintained. If the Applicant identified that his mother was alive then it is possible that a cross-check of her file would have revealed an application in which his existence had been expunged. This may well have led to a reconsideration of the validity of her Woman at Risk visa, notwithstanding the fact that she had legitimate fears for her continued safety in Iraq.
It is hard to see how acknowledgement of his mother could have impacted on the Applicant’s partner visa application (leaving aside the issue of the genuineness of his relationship with MB) since that would not have been a material fact in terms of its consideration.
Hence the most obvious conclusion is that the Applicant was aware of his mother’s position and the status of her visa, despite his denial of this to the Tribunal, and sought to protect her (as any son might) by pretending to the authorities that she was deceased.
As already noted, the Applicant casts a heavy burden of responsibility onto the shoulders of his ex-wife. The Tribunal has mentioned the Applicant’s allegations about the possible alteration of his Iraqi identity documents and MB’s role in its translation.
In final submissions, the Applicant’s representative went further and assigns her a potential role in the completion of the mother’s application:
Turning to the mother's reference to [MB] in her application, we submit that such reference does not necessarily follow that the applicant had knowledge of the contents of his mother's application. But what it conceivably suggests is that the reference to [MB] in the mother's application may also suggest that [MB] had a hand in his mother's application.
We have not heard any evidence from [MB], and it was certainly open to the respondent to call [MB] to be cross-examined as to her knowledge and possible input in the mother's application, and the applicant's application. And it is my submission that it is open to the tribunal to draw an adverse inference by the fact that [MB] was not called to give evidence on this crucial point.
Now, in addressing the concerns that the tribunal put directly to the applicant today, the applicant certainly does not deny that [MB] assisted him in completing the application for a partner visa. However, his evidence is that he did not check the form for its accuracy at the time of lodgment, but denies that he was ever aware that his mother was not mentioned in the application.
What seems apparent is that the missing piece of the puzzle seems to be [MB]. Again, I reiterate that what is conceivable is that [MB] had a hand in both his mother's application, thereby being mentioned in that application, as well as the partner application, and thus a plausible reason for the consistency of the false information about the family composition in both applications.
Once again I contend, Member, on this point that [MB]'s evidence was crucial, and without her evidence the tribunal cannot be comfortably satisfied that the applicant was aware of the false information pertaining to the family composition in his protection visa application.[88]
[88] Transcript dated17 January 2022 at 100, lines 9-39.
The Respondent’s representative dismissed this summary as “pure speculation”[89] and the Tribunal cannot but agree that there is no evidence to support such a proposition.
[89] Ibid at 107, lines 46-47.
The Tribunal is not persuaded that the Applicant did not know that this false information was put forward in his visa application or in subsequent documentation. It does not accept that on two separate occasions, two different people (acting on his behalf), filled in two different forms with the false information especially when all of the parties (the Applicant, MB and allegedly AOM) actually knew that the information was not correct. Both MB and AOM knew that the Applicant’s mother was alive and living in Australia and at least MB knew he had a sister.[90]
[90] AOM’s testimony was that he also knew the family in Iraq.
Crucially, at his departmental interview the Applicant chose to correct the record in relation to his sister and yet to maintain the falsehood in relation to his mother. He had the opportunity to make an entirely clean breast of it all and chose not to do so, indeed he chose to repeat the falsehood.
There is no information before the Tribunal which establishes exactly how the Applicant’s mother departed Iraq and then settled in Turkey. Apparently, she took up residence at a home in Tokat (Anatolia),[91] but was able to move freely to Ankara to lodge her Subclass 204 visa application. She was not accompanied on this potentially hazardous cross-border trip by any supporting relative although both her children subsequently followed her footsteps to Turkey, arriving after she had departed for Australia.
[91] Respondent’s Tender Bundle at 10. Tokat does not appear to be a refugee camp site.
Viewing all the family narratives holistically the Tribunal is concerned that the following deductions can be made:
(a)the Applicant’s mother, with a protective male relative in Iraq (her son) fled to Turkey where she presented herself as a Woman at Risk without any protective male relative – not just in Turkey, but anywhere;
(b)the Applicant and MB knew of these arrangements and, between them, completed a document which concealed the existence of the Applicant’s mother by claiming she was dead and reinforced this by presentation of an official Iraqi document which supported this claim, which they knew to be false;
(c)the Applicant and MB were married in Turkey, within a month of his arrival there, having previously had virtually no, or almost no contact for a significant number of years and although they were together on several occasions in Turkey and Thailand, they never cohabited;
(d)the Applicant prepared to come to Australia and declared that he was intending to reside with MB, however he knew that she had contacted him prior to his arrival to inform him that she did not want him to stay with her and, as a result, he had made alternative arrangements to be met at the airport and accommodated by AOM; and
(e)when initially confronted with evidence of the falsity of his claim that his mother was deceased, the Applicant not only failed to correct this misapprehension, he reinforced it by again claiming that his mother was indeed deceased.
It is open to the Tribunal on the evidence before it and the testimony of witnesses to conclude that the members of the Applicant’s family engaged in deliberately perpetuating falsehoods to secure a Woman at Risk visa for his mother based upon her denial of the existence of her adult son.
It is equally open to the Tribunal to conclude that the Applicant’s marriage to MB was contrived for the purpose of providing him with a sponsor who would facilitate his being granted a visa allowing him to join his mother in Australia.
These are indeed the conclusions which the Tribunal has reached.
CONCLUSIONS
It follows from what has been stated that the Tribunal cannot conclude that the Applicant is a person of good character as required by the Act. He deliberately provided the Australian authorities with information which he knew to be false and misleading, and he did so not by accident but with an ulterior purpose in mind. He repeated this misleading behaviour on more than one occasion and did not take the first opportunity available to him to correct or amend the relevant record. While he accepted “responsibility” and expressed “remorse” for the fact false information was provided, he nevertheless persists in blaming others for the initial submissions in which he was himself complicit.
The deliberate misleading of the Australian (immigration) authorities is an indication that a person is not one of good character and is unacceptable under any circumstances.
This application is redolent with issues of concern, it suggests not so much an aura of confusion as an aura of conspiracy. Aspects of it warrant further investigation by the Respondent.
DECISION
The decision under review is affirmed.
I certify that the preceding 162 (one hundred and sixty -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
....................................[sgd]....................................
Associate
Dated: 4 February 2022
Date(s) of hearing: 13 and 17 January 2022 Date final submissions received: 25 January 2022 Solicitors for the Applicant: Mr S Issa, Firmstone and Associates Solicitors for the Respondent: Ms K Gawidziel, Australian Government Solicitor
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