Sinnathamby v Minister for Immigration and Border Protection - [2018] AATA 2579

Sinnathamby and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2579 (4 July 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5596
Re:Sapeesan Sinnathamby
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:4 July 2018
Place:Melbourne

The Tribunal affirms the decision under review.
..........[sgd]..............................................................
Senior Member D. J. Morris
Catchwords
CITIZENSHIP – identity of applicant – provision of bogus document – threshold requirement not met – good character requirements – inconsistency in information provided to Department – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth), ss 21, 24, 45A
Migration Act 1958 (Cth), s 5
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 86
Secondary materials
DFAT Country Information Report Sri Lanka, 24 January 2017
REASONS FOR DECISION
Senior Member D. J. Morris
4 July 2018
Background

The Applicant in this matter, Mr Sapeesan Sinnathamby, is a citizen of Sri Lanka. On 20 May 2015 he lodged an application for Australian citizenship by conferral dated 18 May 2015. On 23 October 2015 the (then) Department of Immigration and Border Protection (the Department) wrote to Mr Sinnathamby requesting further identification documents. On 31 October 2015 Mr Sinnathamby provided a Sri Lankan National Identity Card (ID card) which was accompanied by an English translation.
On 11 October 2016 the Department informed Mr Sinnathamby by letter that the ID card he provided had been examined, declared bogus and been seized by the Department. On 18 November 2016 Mr Sinnathamby made a statutory declaration regarding the legitimacy of the ID card. On 18 May 2017 Mr Sinnathamby attended an interview with the Department. On 30 May 2017 the Department wrote to the Applicant notifying him of adverse information it had identified regarding his citizenship application and that it may refuse his application, and invited Mr Sinnathamby to provide further information, documentation or explanation.
On 30 June 2017 Mr Sinnathamby responded to the Department through his migration agent and provided further documentary material.
On 22 August 2017 the Department notified Mr Sinnathamby that his application for Australian citizenship had been refused. The delegate of the Minister considered that she was prohibited from approving the Applicant’s application because the delegate was not satisfied of Mr Sinnathamby’s identity pursuant to section 24(3) of the Australian Citizenship Act 2007 (the Act). The delegate further found that the Applicant did not meet the requirements set out in section 21(2)(h) of the Act concerning good character.
It is this decision to refuse the citizenship application which Mr Sinnathamby has brought to the Tribunal for review.
Hearing
The hearing of this matter was held on 19 March 2018. The Applicant was represented by his solicitor, Mr Raj Vadivelu. The Respondent was represented by Mr Damien Clarke. The Applicant gave evidence and was cross-examined. The Tribunal was assisted by an interpreter in the Tamil language. The Tribunal also heard from a number of witnesses called on behalf of the Applicant, both in person and by telephone from Sri Lanka. At the conclusion of the hearing, the Tribunal reserved its decision.
After the hearing Mr Vadivelu wrote to the Tribunal to advise that he had been instructed by his client to provide further information, being telephone call records between the Applicant and his wife. A directions hearing was held on 23 April 2018 to discuss the submission of the new evidence. The Tribunal decided to consider the written and oral submissions made by parties before and at the hearing but, as leave had not been sought or granted to submit later evidence, the Tribunal decided the additional telephone record evidence would not be taken into account.
The law
Section 21 of the Act sets out that a person may make an application to the Minister to become an Australian citizen.
Section 21(2) sets out, relevantly:
(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
….
(h)       is of good character at the time of the Minster’s decision on the application.
Section 24(3) of the Act concerns identity:
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Division 5 of Part 2 of the Act sets out in more detail the identity provisions.
Section 45A of the Act also sets out:
Prohibition on, and forfeiture of, bogus documents
(1)A person (whether a citizen or non-citizen) must not give a bogus document to the Minister, a person acting under a delegation or authorisation of the Minister, a tribunal or any other person or body performing a function or purpose under, or in relation to, this Act (the official), or cause such a document to be so given.
(2)A bogus document given in contravention of subsection (1) is forfeited to the Commonwealth.
The Applicant’s circumstances
Mr Sinnathamby gave evidence that he was born in Palai, Sri Lanka on 31 October 1985, the third of five children. He left Sri Lanka in 2006 by air and travelled to Malaysia. He told the Tribunal he worked in Malaysia until 2009 when he travelled to Australia by boat. He said the first boat he was on foundered and he spent some time in gaol in Indonesia before embarking for Australia.
Mr Sinnathamby told the Tribunal that he obtained an ID card from the Sri Lankan Government but had lost the card in 2004 while out shopping. He gave evidence that he then had sought, and was issued, a new ID card by the relevant department of the Sri Lankan Government.
Mr Sinnathamby said that when travelling between Malaysia and Australia his boat sank and he lost all his personal documents, The only things he was able to keep were photographs of his wife.
The Respondent provided evidence that Mr Sinnathamby applied for a Protection (subclass 866) Visa on 5 February 2010 and this visa was granted on 18 May 2011. On 26 September 2013 Ms Mayoory Sapeesan, whom the Applicant said was his spouse, applied for a Partner (subclass 309) Visa sponsored by the Applicant.

The Respondent’s contentions
Mr Clarke reiterated the written submissions of the Minister at the hearing. He said that the identity documents provided by Mr Sinnathamby (Titre de Voyage issued by the Australian Government, Victoria Driver Licence issued by VicRoads, Medicare card issued by the Australian Government) in support of his citizenship application and relied upon to establish his identity, were all created using information provided by the Applicant himself on or after his arrival in Australia, and without Mr Sinnathamby providing any identity documentation dating from before his arrival.
Mr Clarke also submitted that the ID card provided by the Applicant is a document which the Minister considers has been tampered with by way of photograph substitution and therefore falls into the class of a “bogus document” as defined under section 5 of the Migration Act 1958 (Migration Act). Mr Clarke also submitted that there are statements made by the Applicant in forms provided to the Department and in interviews with Department officers which contain inconsistencies to a level adequate to raise concerns regarding Mr Sinnathamby’s identity and his truthfulness with the Australian Government. Finally, Mr Clarke contended that while the Applicant has provided further supporting evidence and statements from third parties, this evidence does not displace the finding that Mr Sinnathamby provided a bogus ID card.
The Applicant’s contentions
Mr Vadivelu submitted that the ID card issued on or about 19 May 2003 was the card submitted by the Applicant in support of his application for Australian citizenship. This was the first ID card which Mr Sinnathamby claims to have been issued to him by the Sri Lankan Government.
Mr Sinnathamby’s evidence is that, some years after the ID card was lost, his mother received it in the post from the finder, whose own identity was not known to her. She found that it was water-damaged and so had it repaired by being re-laminated and she then sent it on to her son in Australia.
Mr Vadivelu submitted that the ID card as submitted is a true document, genuinely issued and that, even if the Tribunal finds that there is some tampering with the card other than the repair which the Applicant’s mother arranged to be done, this was not done by Mr Sinnathamby, nor with his knowledge, and so does not adversely reflect on his character.
The ID card
Mr Sinnathamby said that in around May 2011 his family, who had been displaced, returned to their home village. He said his mother advised him she had received the ID card and the Applicant told her he did not need it, so she should not trouble to send it on to him. He said his mother told him at the time that the card was badly damaged and she would get it laminated and send it to him.
Mr Sinnathamby said his mother sent the card to him around October 2015. When asked if he noticed any alterations, he told the Tribunal that the letters on the card were not clearly visible because of water damage. Mr Sinnathamby said he initially sent a certified copy and an English translation to the Department and then the ID card itself. He said that he did not notice tampering and, if he had he “would have just said it was lost.”
Under cross-examination, Mr Sinnathamby said that the card he lost in 2004 was posted to his mother at his home address in Karampakam. He said that his mother told him she received the ID card with “some other documents” about one month after they had returned to their home village.
Mr Sinnathamby confirmed that the ID card had been lost between 2004 and 2011, a period of some seven years. When asked why he had not originally provided the ID card with his application for citizenship, Mr Sinnathamby said that there was no particular reason; he had provided a birth certificate and, when the Department requested an identity document with a photograph, that was when he sent it. He said that his mother had sent the ID card to him towards the end of October 2015 by registered post.
Mr Sinnathamby said that some of the letters on the card were invisible or unreadable. He said it looks like it has been smudged and there appeared to be watermarks; he thought it looked like it had somehow got wet, but he didn’t know how it might have got damaged. He said that when his mother had contacted him about the ID card she said it was “damaged and peeling” and she asked if she should have it re-laminated, which he asked her to do.
The Tribunal had before it a Document Examination Case Report dated 26 September 2016 prepared by a forensic document examiner employed by the Department. The author of the report stated he was requested to examine Sri Lankan Identity Card number 853052728V, DOB: 31/10/1985, issued on 19/05/2003.
The examiner examined the document using sophisticated equipment and the report relevantly states:
i.When viewed with magnification there are remnants of another lamina underneath where it hasn’t been as cleanly cut around the edge of the substrate…;
j.The document contains a patch photograph with visible cut marks to the lamina underneath…;
k. The lamina print begins and ends at the edge of the substrate;
l.When viewed with magnification the lamina print over the photo has been cut from the original laminate and then replaced…The significant air pocket around the print shows it is quite raised from the photo which shouldn’t be the case if it was only ink;
Outcome:
Based on my observations there is clear evidence to show that the Sri Lankan Identity card has been fraudulently altered by photo substitution. The lamina encasing the original card was trimmed at the substrate edge, the original photo cut from the document, the lamina print also cut from the document and replaced on top a new photograph, then re-laminated.
In the Summary of Outcomes, the examiner concluded: It is my opinion that the document is Fraudulently Altered by photo substitution.
The Applicant’s mother, Mrs Sivagami Sinnathamby, gave evidence by telephone. She said that after she and her late husband had been displaced, they returned to their home in 2011 and after a month received the ID card by post, together with some other letters that she threw away. She said she did not know who had posted the card and the other documents to her.
Mrs Sinnathamby said the card had been damaged in the rain so she took it to a local shop and had it re-laminated. She told the Tribunal that the shop that did the re-laminating does not exist anymore. She said she put the card aside and sent it on to the Applicant in 2015.
Mrs Sinnathamby was asked whether she attended the wedding of the Applicant in Chennai, which she confirmed that she did. She said she did not see her daughter-in-law often because she works full-time in another town.
The Tribunal also heard from Ms Mayoory Sapeesan by telephone. She stated she married the Applicant in 2013 in Chennai, India. The Tribunal had before it a letter dated 27 October 2016 from an officer of the Department for Registration of Persons (DRP) in Colombo, Sri Lanka. Ms Sapeesan said she had received a letter from the Applicant which she took to the DRP in Colombo on 25 October 2016, travelling overnight on the train. Ms Sapeesan told the Tribunal that she also took with her a photocopy of the ID card which was given to her by Mrs Sinnathamby, the Applicant’s mother.
However, when Mrs Sinnathamby was asked if she remembered her daughter-in-law coming to her home to get a copy of the ID card, she responded “I don’t know.” When the Tribunal directly asked Mrs Sinnathamby whether she remembered giving Ms Sapeesan a copy of the ID card she responded: “I didn’t give her a copy. Why would I give it to her?”
The Tribunal notes that during the hearing, the telephone line to Mrs Sinnathamby was disconnected on more than one occasion and that she told the Tribunal she was hard of hearing. It is accepted that she is elderly and may have become confused, and that her responses were being translated, but her reply, when pressed, on the question of whether she provided a copy of the ID card to Ms Sapeesan, was adamant.
The Tribunal also notes that the letter from the DRP is dated 27 October 2016. Ms Sapeesan’s evidence was that she left for Colombo on 25 October 2016 and travelled overnight by train, so the earliest she could have attended the Department would be 26 October. While it is not implausible that a written response could be provided the very next day, and Mr Vadivelu told the Tribunal that as Ms Sapeesan is a public servant herself this may have expedited matters in terms of oiling the wheels of the bureauracy, the Tribunal was troubled by the fact that the letter from the Department uses the term “National Identify [sic] Card” five times. While the Tribunal accepts that one mistyping might be a typographical error and noted that the letter has been written in English, it is passing strange that the DRP, whose principal function is to issue Sri Lankan National Identity Cards, would perpetuate such an obvious error in referring to the name of the card itself.
In his citizenship interview on 18 May 2017, Mr Sinnathamby said that his (original) ID card “reappeared when [his] family returned to their home, sitting among other letters”. He said that his family gave it to him but since it had been cancelled when the replacement was issued it was not usable and they kept it at home in Sri Lanka.
There are a number of inconsistencies about the circumstances surrounding this card. In May 2017 Mr Sinnathamby said the card reappeared when his family returned to their home “sitting amongst other letters”. This is broadly consistent with his mother’s evidence that she received it in the post, together with some other letters that she threw away. However, the question remains as to why, if the ID card was lost in 2004 when the Applicant said it fell out of his pocket when he was in a supermarket, would some unknown person pick it up and then retain it for some seven years and only then, apparently, return it by post with some other letters. It was not explained to the Tribunal how the anonymous finder would know where to send it, nor why this unknown person would also be in possession of other letters, presumably relating to the Applicant and his family.
Mr Clarke told the Tribunal that he did not have the ID card in his possession because it had been forfeited under the relevant provisions of the Migration Act. This is a matter of regret and Mr Vadivelu fairly raised the point that the Applicant therefore had not had the opportunity to also have the card examined. The Tribunal, however, accepts the expertise and the experience of the forensic document examiner and that he used sophisticated specialised equipment to examine the ID card. This report thereby carries considerable weight. The examiner came to the conclusion on the basis of the scientific examination of the card that it had not simply been re-laminated, as claimed by the Applicant and Mrs Sinnathamby, but that the photograph had been substituted in a careful manner.
After careful consideration of the evidence, the Tribunal finds that no evidentiary weight can be attached to the ID card submitted by Mr Sinnathamby; it is not relevant whether or not the photograph on the card when he gave it to the Department is of him, because the ID card itself has been, in the conclusion of the Tribunal, fatally corrupted in terms of its official veracity. The deliberate alteration of the card, by a person or persons unknown, has compromised the integrity of the card so that it cannot be relied upon to be evidence from the Sri Lankan Government that the person depicted in the photograph is the person named on the card.
Did the Applicant knowingly provide a bogus identity document?
Mr Sinnathamby said in his written submissions and in oral evidence that he would not have provided the card if he had known it had been tampered with. Mr Vadivelu said that the Applicant had no motive to present a false document and that he had presented it in good faith in relation to his citizenship application. Mr Vadivelu likened the situation of the Applicant to a person tendering a counterfeit bank note without knowledge that the note was fake, and said that such an action action did not mean that that person was of bad character.
Mr Vadivelu said that the ID card was presented as ‘secondary proof’ of identity and that the Minister had established the Applicant’s identity in 2011. He stated that the Applicant had provided other documents such as a bank book and had submitted evidence of other persons who vouched for his identity, which should be weighed in his favour.
In terms of whether Mr Sinnathamby’s identity had been established to the satisfaction of the Minister in 2011 when he was granted his protection visa, the Tribunal finds these submissions not on point in terms of the matter under review. The requirements of the Migration Act, which is the statute under which visas are issued for non-citizens to be in, or enter, Australia, are different from those in the Act, and the requirements and obligations on the Minister under the two Acts are different as well.
Australian citizenship by conferral is not something granted lightly. Not only does its conferral give the recipient the right to remain in Australia indefinitely, but also the right to apply for an Australian passport and to be considered, under international law and conventions, as a citizen of this country. There are provisions in the Act for the revocation of citizenship by conferral in certain circumstances, but those circumstances are statutorily limited and exercised exceedingly sparingly under very specific circumstances.

The Tribunal finds the submissions that Mr Sinnathamby had ‘done enough’ to satisfy the Minister of his identity in 2011 in terms of conferral of citizenship some years later completely unpersuasive. The granting of a visa for temporary travel to, or residence in, Australia, even for a permanent residence, should not be taken to equate to satisfying the requirements of the rights of citizenship, such as the ability to apply for an Australian passport, or the ability to vote or stand for elective office. Different tests apply.
Several other aspects of the evidence given about the ID card are troubling. It is not explained how the card would have come into possession of the person who, on Mrs Sinnathamby's evidence, mailed it to her. Putting aside the time period, it may be plausible that someone finding such a card in the local supermarket where the Applicant said he lost it might, as a good neighbour, post it back to the owner, but the evidence she gave that it was posted to her with “some other letters” casts strong doubt on this. The Applicant said the card fell out of his pocket when shopping, not that he lost it with any other items. The hypothetical good neighbour would also be unlikely to retain the ID card for seven years before posting it back to its owner.
This evidence that the card was with some other letters is actually consistent with what Mr Sinnathamby told officers of the Department during his citizenship interview. However, he said the card was at home and his mother ‘gave it to him’, but he asked her to retain it because it was cancelled. He offered no explanation for the seven-year gap between 2004 when the ID card was lost and when it apparently turning up in the post. Above all, the evidence given by Mrs Sinnathamby that she had it re-laminated at a shop which has since apparently gone, and which she couldn’t name, simply does not square with the forensic document examiner’s report about the relatively sophisticated re-lamination and substitution of the photograph. The Tribunal concludes that the ID card has been deliberatedly altered at least once, and possibly more than once.
On balance, the Tribunal does not, on the evidence before it conclude that the Applicant knowingly provided a bogus document to the Department. However, the very best interpretation the Tribunal can make is that Mr Sinnathamby was reckless as to the veracity of a document he was providing to the Department as part of proving his identity.
The Tribunal accepts that persons who arrive in the circumstances of the Applicant, as an unauthorised maritime arrival, frequently do not have personal documents in their possession, and may accept the evidence of Mr Sinnathamby that he lost his replacement ID card when his boat capsized off the coast of Indonesia. Mr Sinnathamby said in evidence that his parents returned to their home in May 2011 from the location to where they had been displaced and on his mother’s evidence the original ID card turned up in the post around one month later.
The Applicant had applied for a protection visa in October 2010 and it was granted on 18 May 2011. It was not explained why, if Mr Sinnathamby had lost his national ID card and had no other photographic evidence of his identity from the Sri Lankan Government, he did not ask his family to immediately send this important document to him. This is surprising, given he had no other primary identity document and the ID card was readily available to him, by post. Instead, he waited until the end of 2015 to have the ID card sent to him.
The Department of Foreign Affairs and Trade Country Information Report for Sri Lanka states:
Sri Lankans residing overseas can apply for identity documents from any Sri Lankan overseas mission.
Mr Sinnathamby told the Tribunal that he had attended the Sri Lankan Consulate in Melbourne sometime in 2016 and had been told that because he left the country illegally he could not obtain a replacement national ID card.
Other evidence of identity
The Tribunal does not place great weight on the Australian government agency documents provided by the Applicant in terms of providing official corroborative evidence of his identity, because they are based on his own self-reporting of his identity and have been generated since he arrived in Australia.
The translated copy of the ID card states it was issued on 19 May 2003 and gives the Applicant’s occupation as “farming”. However, in his citizenship interview Mr Sinnathamby said in 2003 he was attending school. In his 2017 statutory declaration he attributes the error in regard to the occupation to the village headman, who is the local official responsible for processing applications for national identity cards.
The Applicant also provided other documents such as telephone bills, a photocopy of a bank book and an asylum seeker certificate issued by the United Nations High Commissioner for Refugees in 2009, but none of these documents constitute primary proof of identity., they are secondary sources produced by third parties on information given by Mr Sinnathamby which has been accepted.
The Minister’s obligations
The Parliament has couched section 24(3) in terms that the Minister must not approve an application for citizenship unless the Minister is satisfied of the person’s identity. It is, in effect, a prohibition on the Minister exercising his powers under the Act to confer citizenship unless he can be satisfied in regard to this requirement.
The Courts and this Tribunal have frequently considered what is meant by the statutory phrase that a person is “satisfied” of a requirement. Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) is the leading authority, and it has been frequently and contemporarily re-stated by that Court (notably in Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors (1992) 110 ALR 449, by Toohey J for the Court, at 450). In Briginshaw, Dixon J (as he then was) stated:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
Essentially, therefore, in this matter, the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges. Borrowing from His Honour’s words, I find that the evidence in this matter from the Applicant about how re-lamination occurred is inherently unlikely, as is the evidence of the Applicant that the card was apparently in the possession of his mother but he did not seek it, when to do so would be of benefit to him proving his identity in Australia.
The Tribunal cannot find that it is probable that the chain of events in relation to this document has occurred as the Applicant, his wife and his mother have stated. Maybe some parts of the evidence given at the hearing and in submissions are true, but the inescapable fact is that someone has replaced (and maybe replaced again) the photograph on the card, and the only reasonable conclusion that can be drawn is that fact is that it was done for nefarious purposes.
I find that the Minister cannot be satisfied of the identity of the Applicant on the material before him in relation to the application for Australian citizenship and so, by force of section 24(3) the Minister is prohibited from granting citizenship.
As this threshold requirement has not been met, the application for citizenship must therefore fail.
It is not strictly necessary for the Tribunal to go on to consider whether the Applicant satisfies section 21(2)(h) of the Act in terms of good character. However, the Tribunal was troubled by the inconsistent accounts the Applicant gave surrounding the loss and regaining of the ID card, and also certain inconsistencies around Mr Sinnathamby’s schooling.
In 2009 Mr Sinnathamby said he attended school in Jaffna between 1993 and 2006. In his protection visa application he said he attended primary school from the beginning of 1995 until the end of 2005. In his citizenship interview, the Applicant said his schooling was interrupted in 1998 because his family was forced to relocate and he resumed study in 2004. In his 2017 statutory declaration he said his schooling was interrupted in 1998 but that he returned to study in 2000. The Respondent submitted that, whether Mr Sinnathamby’s first year of schooling was in 1993 or 1995, neither of those statements are consistent with his 2017 statutory declaration that he was in grade 7 in 1998.
In his citizenship interview, the Applicant said he sat his A-level examinations in 2006 but later said he left school at the end of 2005 after completing his O-levels. In his 2017 statutory declaration he said he sat for his O-level exams in 2003.
In the hearing, the Applicant was asked whether it was common to sit A-level exams when aged 20 or 21, and he said students normally sit them aged 18. He said he didn’t remember what he said in his interview about attending school between 1993 to 2006 because he was stressed after the voyage and is not sure what he said was 100 per cent accurate.
In his application for a protection visa, Mr Sinnathamby said he was in Malaysia from November 2006 to May 2009 (30 months). However, in his citizenship interview the Applicant said he worked in Malaysia for “four or five years”. In evidence at this hearing, he repeated that he was in Malaysia between 2006 and 2009 and said he arrived in Indonesia on 29 August 2009.
The Tribunal finds, given the amount of inconsistent evidence, that the Applicant has not satisfied section 21(2)(h) of the Act to a degree of positive satisfaction. This finding should not be interpreted as saying that Mr Sinnathamby is of ‘bad’ character, but the requirements of that part of the Act require a positive conclusion. Consequently the Tribunal finds the delegate was also correct that the Applicant did not meet this requirement.
Lest it be thought the Tribunal should have had regard to the telephone records the Applicant instructed Mr Vadivelu to provide after the hearing, the Tribunal makes clear that the question of the genuineness of his marriage or his relationship with Ms Sapeesan is not a matter in contention, nor is certain other material he raised such as the relationship with his brother or friends in Australia. These matters may be relevant in a circumstance where there is no bogus document involved, but not in this case, where the Applicant’s citizenship application has been refused on the basis of failure to satisfy the requirements relating to identity.
Providing bogus documents to the Australian Government is a very serious matter, whether done deliberately or recklessly. The Tribunal does not accept Mr Vadivelu’s analogy that Mr Sinnathamby may be likened to a person unwittingly tendering a counterfeit banknote. This document was a primary identity document which the Applicant was giving to the Department for a serious purpose and which was held out to be a personal document directly relating to him. As was made clear by the Respondent during the hearing, it was not contended by the Minister that the Applicant was an imposter, but equally the Tribunal has found that he did not meet the requirements to satisfy the Act as to his identity on the information he has so far furnished.
DECISION
The decision under review is affirmed.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.........[sgd]...............................................................

Associate

Dated: 4 July 2018

Date(s) of hearing: 19 and 20 March 2018

Solicitor for the Applicant: Raj Vadivelu, Mano Associates

Solicitor for the Respondent: Damien Clarke, Clayton Utz

Date(s) of hearing:	19 and 20 March 2018
Solicitor for the Applicant:	Raj Vadivelu, Mano Associates
Solicitor for the Respondent:	Damien Clarke, Clayton Utz