SRFX and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2024] AATA 3549
•8 October 2024
SRFX and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3549 (8 October 2024)
Division:GENERAL DIVISION
File Number:2022/1232
Re:SRFX
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Henderson
Date:8 October 2024
Place:Perth
The decision of a delegate of the Respondent dated 2 February 2022, to refuse the approval of the Applicant’s application for citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) is affirmed.
........[Sgd]................................................................
Member Henderson
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied applicant was of good character – identity – Australian Citizenship Act 2007 s 21(2)(h) – Applicant is a citizen of Afghanistan – bogus documents – previous partner visa applications – Tribunal cannot satisfactorily ascertain Applicant is of good character – reviewable decision affirmed
LEGISLATION
AUSTRALIAN CITIZENSHIP ACT 2007 (CTH), SS 21, 21(1), 21(2)(H), 24, 24(1A), 52(1)(B), 53
AUSTRALIAN CITIZENSHIP REGULATIONS 2016 (CTH)
CASES
Boy19 v Minister for Immigration and Border Protection [2019] FCA 574
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231
FCR 128Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Home Affairs v G and Another [2019] FCAFC 79
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
SECONDARY MATERIALS
Attorney-General’s Department, National Identity Proofing Guidelines (10 August 2023), [2.1.1]-[2.1.2]
Australian Citizenship Policy Statement, 27 November 2020
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act, 15(4)
Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act
Convention on the Rights of the Child, GA Res 44/25, UN Doc A/RES/44/25 (20 November 1989)
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2007 (Cth)
REASONS FOR DECISION
Member Henderson
8 October 2024
INTRODUCTION
The Applicant seeks review of a decision of a delegate of the Respondent (the delegate) dated 2 February 2022, to refuse the Applicant’s application for citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).[1]
[1] R1, T37.
The matter was heard in Perth on 19 June, 20 June and 4 July 2024. The Applicant was represented by Henry Christie. The Respondent was represented by Ms Daphne
Jones-Bolla of Sparke Helmore Lawyers.
BACKGROUND
The issues arising in this application are founded in the history of the Applicant’s dealings with the Department. It therefore warrants setting out the background of those dealings in detail.
The Applicant claims to be a citizen of Afghanistan and says that he was born on or around 25 December 1991.[2] He claims to have travelled to Pakistan as a child, where he remained living until his first contact with the Department.[3]
[2] R1, T33, p 148; A1, pp 1-2. The Applicant says that dates of birth are not officially recorded or annually celebrated in Afghanistan and he is not aware of any record proving his actual date of birth.
[3] A1, p 2.
Orphan visa application
In December 2009, the Applicant lodged an application for an offshore Orphan Relative (subclass 117) visa, which was granted in March 2011 (Orphan Visa Application).[4] The Applicant was sponsored by his sister Ms R. In the course of the application process, the Applicant declared that he was not in a de facto relationship and was not married.[5] He did not update this information prior to his arrival in Australia in May 2011.[6]
[4] A1 at [12].
[5] The Respondent advised the Tribunal in an email dated 13 June 2022 that the files relating to the Orphan Visa Application were destroyed in a fire at Dubai’s offsite storage in 2014, but it is not in dispute that the Applicant did not declare a partner or children in his Orphan Visa Application.
[6] R2, ST9, p 198.
Partner visa application
In November 2013,[7] the Applicant sponsored an offshore application for a Partner (Provisional) (Class UF) (subclass 309) visa and a Partner (Migrant) (Class BC) (subclass 100) visa for his wife, Ms K (Partner visa).
[7] R2, ST1, p 12.
The Applicant’s Form 40SP – Sponsorship for a partner to migrate to Australia (Form 40SP) declared that Ms K and the Applicant had met in early January 2012, committed to a shared mid-January 2012, and married in late January 2012.[8] Form 40SP enquired about any previous marriages, and the Applicant declared that Ms K had been married from 2006 to 2011.[9] The Applicant did not provide any answer to the question ‘number of children from this relationship’.
[8] R2, ST1, p 19.
[9] R2, ST1, p 35.
Ms K’s Form 47SP – Application for migration to Australia by a partner (Form 47SP) repeated the information in the Applicant’s Form 40SP and further declared that she had two children and that she had previously been married from 2006-2011.[10]
[10] R2, ST1, p 19.
The covering letter by which the Partner visa application was sent to the Department stated that the Applicant and Ms K ‘knew each other as they used to live on the same street. [The Applicant] moved to Australia in 2011’.[11] In addition to Form 47SP and Form 40SP, the covering letter attached various evidence relating to the Applicant, Ms K and her two children in support of the visa application, relevantly including:
(a)A statement from the Applicant dated 19 March 2013 (Applicant’s 2013 Statement);
(b)A statement from Ms K, undated (Ms K’s 2013 Statement);
(c)A death certificate for Mr L (2012 Death Certificate);
[11] R2, ST1, p 3.
Both the Applicant and Ms K gave evidence about their meeting in their statements. Each said that they had lived in the same street and knew each other before the Applicant moved to Australia. Each said that Ms K had told the Applicant about Mr L’s death and the fact that she had two children during their first meeting in the street after the Applicant returned in 2012.[12]
[12] R2, ST1, p 76 and 78.
2012 Death Certificate
The Partner visa application included the 2012 Death Certificate which states that Mr L died on ‘20-2-2011’ with the name and insignia of a Hospital in Quetta (the Hospital).[13]
[13] R2, ST1, p 80.
On 20 August 2024 the Department emailed Ms K requesting, amongst other things, a death certificate form the Pakistan Union Council for Mr L. In a statement dated 2 September 2014, provided to the Department on 8 October 2024, Ms K advised the Department in response that, as she is an
Afghan national and living illegally in Pakistan, they refused to give death certificate by said Union Council at Quetta being Afghan illegal Refugee, therefore, death certificate from Union Council not exist.’[14]
[14] R2, ST3, p 167.
The Department subsequently made enquiries with the Hospital through the Australian High Commission in Islamabad about the 2012 Death Certificate and received the following information:[15]
This particular letter is a medical slip on which medicines are written. It is not a Certificate. This letter is only a prescription slip on which medicines are written. This letter is not considered as a Death Certificate. If it is presented to your office as a death certificate then it should be considered as bogus letter.
[15] R3, ST23, p 2.
Further information was provided that ‘orthopaedic OPD is not responsible to issue death certificates’ and that there was no record of a patient under Mr L’s name ‘being admitted to the hospital on [date redacted].’[16]
[16] R3, ST24, p 3.
Marriage Certificates
The Partner visa application attached a marriage certificate held out as proof that the Applicant had married Ms K in January 2012, issued in February 2012.[17] The ‘place of issue’ is ‘General Consulate I/R of Afghanistan’ and specified the ‘Reg No’. It has been referred to by the parties in the course of the proceedings as the Afghan Court Registry Marriage Certificate (Afghan Court Registry Marriage Certificate).
[17] R4, ST25, pp 4-15.
The Applicant subsequently produced a ‘Nikah Namah’ and translation showing that the parties were married in January 2012,[18] which has also been referred to during the proceedings as a marriage certificate (Nikah Namah), and a registration of Marriage Certificate issued by the Office of Registration, Supreme Court in Kabul dated April 2019 (2019 Registration of Marriage).[19]
[18] A6; A7.
[19] A5.
Offer of DNA testing and admission of possible parentage
On 13 January 2015 the Department’s office in Dubai requested DNA testing to establish the biological parentage of the two children.[20] The letter stated that the delegate had ‘considered the information provided [in] the application’ and was ‘not satisfied that the evidence demonstrates the claimed relationship between [Ms K], her claimed children and [the Applicant].’[21] The letter continued:[22]
This means that, as the Department is not satisfied of the claimed relationship between them, [Ms K] and her claimed children will not be eligible for the grant of a Partner (Provisional) visa.
[20] R2, ST5 p 178.
[21] R2, ST5, p 178.
[22] R2, ST5, p 178.
The letter further set out the testing that ‘needs to be conducted', which included paternal tests between the Applicant and the children as well as maternal tests between Ms K and the children.[23] The letter stated, under the heading ‘Offer of DNA testing’ that the Applicant and Ms K had ‘the option of undertaking DNA testing as it may prove their family relationship’ (emphasis added), however it was clearly communicated in the introductory paragraphs that the consequence of not undertaking DNA testing would be a finding that Ms K was ineligible for a partner visa.
[23] R2, ST5, p 178.
The Applicant provided the Department with a statutory declaration dated 16 February 2015 (Applicant’s 2015 Statutory Declaration) amending the date on which he had met Ms K and stating that they were involved prior to the death of Mr L.[24] The Applicant drew to the Department’s attention the possibility that he might be the father of the children.
[24] R2, ST6, pp 182-183.
On 13 April 2015 DNA test results confirmed that the Applicant is the biological father of
Ms K’s two children.[25]
[25] R1, T37, p 172.
Lodgement of citizenship application
In June 2016, whilst the Partner visa application was still being considered, the Applicant lodged an Application for Australian Citizenship by Conferral – General Eligibility (Citizenship application).[26]
[26] R1, T4.
Discovery of allegedly bogus documents
On 23 August 2017 the Department requested verification of the 2012 Death Certificate and the Afghan Court Registry Marriage Certificate.[27] On 14 March 2018 the Department received confirmation from the Australian High Commission, Islamabad, Pakistan, that the Afghan Court Registry Marriage Certificate had not been issued by the relevant authority and that it was a counterfeit document.[28] On 19 June 2018 a Hospital officer confirmed that the 2012 Death Certificate is a medical slip, on which prescription is made for the patients and asserted that it cannot be considered a death certificate.[29]
[27] R4, ST26, p 17.
[28] R4, ST26, p 16.
[29] See [12]-[13].
Partner Refusal Decision
In January 2020, the Partner visa application was refused (Partner Refusal Decision).[30] The reason for the refusal was that the delegate found Ms K had submitted false and misleading information and there appeared not to be any compelling reasons for the grant of the visa. Ms K therefore did not satisfy the requirements of Public Interest Criterion 4020 as required by cl 300.225 of Schedule 2 to the Migration Regulations 1994.[31]
[30] R3, ST21, p 4.
[31] R3, ST21, p 4.
Partner Remittal Decision
The Applicant sought review of the Partner Refusal Decision to the Migration and Refugee Division of the Tribunal. In September 2021, the matter was heard before Member Gagliardi.[32] In October 2021, the Tribunal remitted the application for the Partner visa for reconsideration with the direction that Ms K met the Public Interest Criterion 4020 for the purposes of cl 300.225 of Schedule 2 of the Regulations (Partner Remittal Decision).[33]
[32] R3, ST21, p 4.
[33] R3, ST21, p 3.
The Tribunal made a firm finding of fact that the Applicant and Ms K had provided a bogus document and false and misleading information to the Department.[34] Member Gagliardi made the following observation in the course of the Partner Remittal Decision:[35]
26. For the applicants to simply argue that they were a family unit and there had been no affair with [Mr L], and that the parties were married prior to 2012, could only have strengthened the application for a subclass 309. There would have been no need for the applicants to invent a story about the primary applicant having had an affair resulting in two children.
27. The Tribunal therefore queries what the motivation behind the bogus documents and the false and misleading information was. The Tribunal has found the answer in the fact that the applicant had come to Australia on an Orphan Relative Visa granted in 2011. Had the applicant represented his true marital relationship with [Ms K], he would not have been eligible for the grant of that visa. Having represented himself thus as a single person who had been orphaned, he was granted a visa to which he had no entitlement. In order to explain away the marriage to the primary applicant and the existence of the two older secondary applicants and to conceal that the sponsor in fact had provided false and misleading information to the Department to obtain a visa to Australia, the parties concocted their elaborate claims that their two biological children were born out of wedlock while the primary applicant was married to a fictitious [Mr L].
28. The Tribunal can find no other logical explanation for the account given at primary review and maintained at the time of the hearing with the Tribunal. Otherwise the parties could have told the truth which is that they have been in a long-standing spousal relationship and have had three children of that relationship, which would only have enhanced their claims to meet the requirements of a subclass 309 visa.
(Emphasis added)
[34] R3, ST21, pp 7-8.
[35] R3.
The Tribunal’s firm finding of fact was that the Applicant and Ms K were in a long-standing spousal relationship and all their children[36] were born of that relationship.[37] The Partner Refusal Decision was remitted, however, on the basis that the Applicant could not return to live with his family in Pakistan because of altered country information, and his family would not be safe in Afghanistan because he is Hazara. The only available option for the Applicant and his family to be safely together is Australia, and on that basis Member Gagliani was prepared to waive the requirements of PIC 4020(1).[38] She also accepted the Applicant’s identity pursuant to PIC 4020(2A).[39]
[36] They had three at that stage.
[37] The evidence on which that finding was based, however, was relatively limited as compared to the evidence presently before the Tribunal, surveyed below.
[38] R3, ST21, p 14.
[39] R3, ST21, p 14.
Citizenship Decision and review
On 25 May 2020, the Department invited the Applicant to comment on adverse information arising from his Partner visa application, the basis for its refusal, and the Tribunal’s findings of fact in the Partner Remittal Decision.[40]
[40] R1, T7.
In February 2022, the delegate made the Reviewable decision.[41] The delegate was not satisfied that the Applicant was a person of good character as required by s 21(2)(h) of the Act,[42] and further found that they were prohibited from approving the application because they were not satisfied of the Applicant’s identity as required by s 24(3) of the Act.[43] The delegate relied heavily on the Partner Visa Remittal decision in reaching these conclusions. The Respondent’s position was essentially the same as it is in these proceedings: Mr L did not exist and was invented for the purpose of covering up an earlier marriage between the Applicant and Ms K which would have rendered him ineligible for the Orphan Visa.
[41] See [1].
[42] R1, T37, p 172.
[43] R1, T37, p 183.
In February 2022, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the Reviewable Decision.[44]
[44] R1, T2.
ISSUES
The two issues before the Tribunal are:
(a)whether the Tribunal is satisfied that the Applicant is a person of good character for the purpose of s 21(2)(h); and
(b)whether the Tribunal can be satisfied of the applicant’s identity under s 24(3) of the Act.
Underpinning both issues is the question of the Applicant’s life story; what it comprises, to what extent he has been truthful and forthright about it, to what (if any) extent he has caused or knowingly allowed bogus documents to be submitted to the Department, and to what extent there is a reasonable explanation for any mistruths or otherwise misleading conduct by the Applicant that mitigates it for a character assessment.
The Applicant maintains that the relationship of sexual intimacy was not conjugal but was an extra marital affair, and that the children conceived by it were, for all intents and purposes, not his but Mr L’s. He says that he was truthful in his answers when he submitted the Orphan Visa Application and, apart from not disclosing his prior sexual intimacy with
Ms K until 2015, he has been truthful in respect of her Partner Visa Application and in his Citizenship Application.
The Applicant accepts that the onus is on him to satisfy the Tribunal that he was not in a married or de facto relationship with Ms K at any time prior to his marriage to her in January 2012.[45]
[45] Applicant’s closing submissions at [6].
Agreed facts
It is clear that there is no dispute between the parties about some fundamental factual propositions, including:
(a)The Applicant did not declare that he had or might have biological children in his Orphan Visa Application;
(b)The Applicant is, in fact, the biological father of a child that was born before the Orphan Visa Application was made, and the biological father of a child that was born before the Orphan Visa Application was granted;
(c)The Partner Visa Application did not disclose that the Applicant might be the biological father of Ms K’s two children;
(d)The Partner Visa Application stated that the Applicant met Ms K for the first time in 2012 and/or had only known her remotely as a person who lived on the same street as himself prior to that date;
(e)The Applicant engaged in sexual intimacy with Ms K from about 2006 to 2011; and
(f)The Applicant did not voluntarily disclose that he had previously been in a relationship of sexual intimacy with Ms K until the question of DNA testing arose in 2015.
LEGISLATIVE FRAMEWORK
The application for review of the Reviewable Decision is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Tribunal for review of a decision under s 24 of the Act.[46] The decision subject to review is the decision not to grant citizenship to the Applicant.
[46] R1, T2.
Good character
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application’. Section 24(1A) of the Act prohibits the Minister (or delegate under s 53 of the Act) from approving an application unless so satisfied.
The expression ‘good character’ is not defined in the Act. There are no criteria contained in the Act by which the Minister is to consider what comprises good character, and it has been held that this is an indication that Parliament intended the term to be used in a broad way.[47] The words ‘good character’ are used in their ordinary sense.[48]
[47] Grass v Minister for Immigration and Border Protection[2015] FCAFC 44; (2015) 231 FCR 128 at [60].
[48] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431].
Matters that bear upon a person’s good character for the purposes of the Act are matters relevant to the obligations of citizenship as expressly or impliedly reflected in the Act, including its Preamble, which recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and involves reciprocal rights and obligations.[49]
[49] Boy19 v Minister for Immigration and Border Protection [2019] FCA 574 at [53].
Citizenship Procedural Instruction 15
Guidance is set out in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship Policy Statement, which came into force as of 27 November 2020 (the Policy).
Policy is not binding on the Tribunal, but decision makers should generally apply it unless it is unlawful or there are cogent reasons why it should not be applied.[50]
[50]Minister for Home Affairs v G and Another [2019] FCAFC 79 at [57]-[62].
CPI 15(4) provides that an Applicant of good character would, among other things:
· respect and abide by the law in Australia and other countries;
· not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example intentionally providing false personal information or other material; and
· not be the subject of any verifiable information causing character doubts.
CPI 15 sets out how a holistic assessment of a person’s character may be made in the following terms:
In addition to the general principles of good decision-making…officers assessing whether an applicant is of good character should as a general proposition:
Characterise the nature of any offence or behaviour
ois the offence serious or minor?
odid the offence harm other people?
owho were victims?
ois there a pattern of behaviour?
owas it a one off incident?
owere there extenuating circumstances?
Consider any associations with people or organisations of concern.
Consider any mitigating circumstances:
olength of time since the offence was committed
oage at time of offence
obehaviour since completing prison sentence or obligations to court
oremorse regarding their offending behaviour
ocommunity support (referee reports etc)
ochanges in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.
Notwithstanding the obligation to take a holistic approach, it is established that a single adverse incident of sufficient weight and seriousness can outweigh many good qualities in a person.[51]
[51] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].
Identity
Section 24(3) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied of the identity of that person. Identity is not defined in the Act and neither the Act nor the Australian Citizenship Regulations 2016 (Cth) prescribe specific identity documents that must be provided by an applicant in order to satisfy the Minister for the purposes of s 24(3) of the Act.
Guidelines
The concept of identity is described in the Attorney-General’s Department’s National Identity Proofing Guidelines (Guidelines). Relevantly, the Guidelines describe identity as follows:[52]
A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
…
For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP Australian immigration documents or records.
[52] Attorney-General’s Department, National Identity Proofing Guidelines (10 August 2023), [2.1.1]-[2.1.2].
The Guidelines further provide that the veracity of a person’s identity is established through evidence provided to meet some or all of the five identity proofing objectives. Those objectives are in part to confirm:
(a)The uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another;
(b)The claimed identity is legitimate to ensure the identity has not been fraudulently created through evidence of commencement of identity in Australia;
(c)The operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community;
(d)The linkage between the identity and the person claiming the identity to provide confidence that the claimed identity is not only legitimate, but that the person claiming the identity is its legitimate holder; and
(e)The identity is not known to be used fraudulently, to provide additional confidence that a fraudulent (either fictitious or stolen) identity is not being used.
Citizenship Procedural Instruction 16
Extensive guidance for decision makers making assessments as to identity also exists in the Citizenship Procedural Instructions.
Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act
(CPI 16) describes identity as follows:[53]
A person’s identity is defined by a certain combination of characteristics or attributes that allow that person to be uniquely distinguished from others within a specific context.
[53] CPI 16 at [4].
CPI 16 provides that when assessing a person’s identity, decision-makers should consider the following three pillars of identity:
(a)biometrics – personal identifiers such as fingerprints, facial images or a signature;
(b)documents – only reliable identity documents that are issued in accordance with robust identity proofing processes can satisfy this pillar; and
(c)the person’s life story.
With respect to protection visa holders who may have fled their homeland as a result of persecution and have been displaced long-term in third countries prior to arrival in Australia, as is the Applicant’s case, alternative identity proofing processes may be developed. The guidelines add that it would remain appropriate to rely on the three pillars in assessing identity, but that ‘it may be appropriate to take the point of permanent visa grant as the starting point of the identity assessment and consider Australian issued primary identity documents’.[54]
EVIDENCE
[54] CPI 16 at [4.1]
Exhibits
The Respondent lodged the following documents which were tendered as exhibits at hearing:
(a)Section 37 T Documents labelled T1-T40, comprising pages 1-243 (R1);
(b)Section 37 Supplementary T Documents, Volume 1, labelled ST1-ST9, comprising pages 1-198 (R2);
(c)Section 37 Supplementary T Documents, Volume 2, labelled ST20-ST21, comprising pages 1-16 (R3);
(d)Section 37 Supplementary T Documents, Volume 3, labelled ST22-ST29, comprising pages 1-22 (R4);
(e)Respondent’s Statement of Facts, Issues and Contentions dated 24 February 2023 (R5); and
(f)Additional submissions dated 18 March 2024, comprising pages 1-7 (R6).
The Applicant lodged the following documents which were tendered as exhibits at hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions, dated 23 January 2023, comprising pages 1-16 (A1);
(b)Taskera of Mr G, comprising pages 1-9 (A2);
(c)Department of Home Affairs email, dated 18 July 2017, comprising pages 1-3 (A3);
(d)Extract from Afghan biographies – Wahidullah Mohmand (A4);
(e)Afghan Court Registry Marriage Certificate with translation (duplicate sent 27 January 2023), comprising pages 1-12 (A5);
(f)Marriage Certificate dated 25 January 2012 (A6);
(g)Marriage Certificate Translated, comprising pages 1-2 (A7);
(h)Burial Certificate of Mr L – Mr F, comprising pages 1-2 (A8);
(i)Documents pertaining to Mr L (death and burial), comprising pages 1- 5 (A9);
(j)Department of Home Affairs Notes from 2010 re Orphan file (duplicate sent 27 Jan 2023) (A10);
(k)Request for further unredacted documents and disclosure of names dated 1 August 2022 (A11);
(l)DNA Testing Results dated 1 August 2022, comprising pages 1-7 (A12);
(m)Statutory Declaration of SRFX dated 11 January 2023, comprising pages 1- 6 (A13);
(n)Statement of Mr H dated 29 September 2022, comprising pages 1-4 (A14);
(o)Statement of Ms R Jafari dated 29 September 2022, comprising pages 1-8 (A15);
(p)Statutory Declaration of SRFX dated 27 September 2021, comprising pages 1-3 (A16);
(q)Statement of Ms K with attached signed last page dated 27 September 2021, comprising pages 1-7 (A17);
(r)
Statement of Mr J dated 21 September 2022, comprising pages
1-4 (A18);
(s)Statement of Ms S dated 16 September 2022, comprising pages 1-3 (A19);
(t)Statutory Declaration of Mr H dated 1 September 2006, comprising pages 1-2 (A20);
(u)Statement of Mr W dated 16 June 2022, comprising pages 1-2 (A21);
(v)Statement of Mr F dated 26 May 2022, comprising pages 1- 2 (A22);
(w)Statutory Declaration of SRFX dated 19 August 2018 (A23);
(x)Statement plus translation from Ms R dated 26 June 2006, comprising pages 1-2 (A24);
(y)Statement of SRFX dated 15 March 2024 (A25);
(z)Statement of Mr D dated 15 March 2024 (A26);
(aa)Copy of Hospital Death Certificate received from Mr D dated 4 October 2022 (A27);
(bb)Hospital Death Certificate for Ms M dated 27 June 2008 (A28);
(cc)Standard Academy English Language SRFX (A29); and
(dd)Applicant’s response to Respondents Statement of Facts and Contentions (A30).
The Applicant filed written closing submissions dated 31 July 2024. The Respondent filed written closing submissions dated 14 August 2024.
The Applicant’s claimed life story
Exhibit A1 summarises the version of events that the Applicant relies upon to satisfy the Tribunal of his character and identity, which is as follows.
The Applicant lived in Afghanistan until his father was killed in 2004 (when the Applicant was around 13 years old), after which he fled to Quetta in Pakistan with his mother and two younger siblings to be with his older sister, Ms R.[55] Sometime after arriving in Pakistan the Applicant met Ms K, who was single, and they commenced a friendship.[56] In or around 2005-2006 it became a teenage romantic, but non-sexual, relationship.[57] Ms K entered into an arranged marriage with Mr L in June 2006 and didn’t see the Applicant for some months. They subsequently met by chance and started a sexual affair, in the course of which Ms K bore two children. The affair continued until the death of Ms K’s husband in February 2011, after which the relationship ended.[58] The Applicant travelled to Australia, arriving in May 2011.[59] The Applicant and Ms K were married almost exactly 8 months later. The Applicant says that he had returned to Quetta contemplating marriage in general terms (not specifically with Ms K), and he met Ms K in the street, again by chance, and discovered she was still single. At that point he realised she was the one person he wanted to marry.[60]
[55] A1, p 2.
[56] A1, p 3.
[57] A1, p 3.
[58] A1, p 3.
[59] R2, ST9.
[60] A1, pp 3-4.
The Applicant says that he did not volunteer this story to the Department until it became apparent that he had to do so, because of the very significant risk that the illicit affair posed, and continues to pose, to Ms K in a country and cultural group where infidelity is taken extremely seriously and can result in physical harm.[61]
[61] A1, p 4.
Applicant’s evidence
The Applicant’s written evidence of his relationship with Ms K is detailed in his declaration dated 14 May 2021[62] and his declaration dated 25 July 2021.[63]
[62] R1, T27, pp 115-121.
[63] R1, T27, pp 153-156.
The Applicant’s evidence in chief during the hearing included information about the present knowledge of his two oldest children. He said that the children know Ms K had a previous husband, but that they do not know about the Applicant’s intimate relationship with her in the course of that prior relationship. He said that they had not seen the reissued birth certificates showing that he is their father and that he doesn’t know what will happen when they ask him for copies of their identification papers as adults. The Applicant said that if the two oldest children find out about the pre-marital relationship between himself and their mother then the children might hate the Applicant and Ms K. He was clear that he has no present intention to tell the children he is their biological father.
On cross-examination the Applicant was taken through his first meeting with Ms K around 2006, and he gave a detailed account of his first sight of her, his first meetings and their first hug. The Applicant’s level of detail, and the faintly smiling sense of reminiscence in his delivery of that detail gave the Tribunal the impression that he was recalling something that had really happened, that was important to him, and that he feels sentimental about.
The Applicant said he had not spoken about marriage with Ms K until she told him about the betrothal that had been arranged for her with Mr L. He said this was because he knew that he was not in a financial position to marry; he claims to have been 15 years old and living with his older sister at the time of the assessment of his financial position, which is consistent with the balance of his story.
The Applicant’s evidence was that after Ms K’s betrothal he did not see her again until after the wedding had taken place, some months after the last of their meetings. At that time they both had mobile telephones. He said he had gone to the house Ms K shared with Mr L to meet her and to talk. She brought tea. Mr L’s parents and sisters were also living in the house.
The best evidence of the Applicant’s meetings with Ms K is in his July 2021 Statutory Declaration, which provides as follows:[64]
During the second period, after [Ms K’s] marriage, when we first met by arrangement only a couple of times in the marketplace and thereafter, during the period of our affair, which lasted for a bit over 4 years, we met secretly at the house where [Ms K] lived with her husband and his family. Our meetings were infrequent, occurring only when [Mr L] was away on business and, in addition, only when [Ms K] knew that no one else was at the house or likely to return unexpectedly. Our meetings would occur only on average once or twice a week, occasionally more often, during the period that [Mr L] was away and only for one to two hours or sometimes even less. There would be no change in my behaviour which would cause my family to be suspicious, as I was typically away from my house and family for several hours a day in any event and far longer than the time I spent with [Ms K]. During the period of our affair, when I was working part-time as a trainee tailor, I was only working in total about 10 hours a week. My hours were unstructured and if [Ms K] told me that the house was to be empty and we could meet and it clashed with my work, I would simply make some excuse and organise my work around it. My work as a labourer was so infrequent that I don’t recall it ever impinged on the opportunities that I had to be with [Ms K]. My meetings with [Ms K] were during the day, so they were not affected by my English language classes. The main risk that [Ms K] and I faced was that I would be discovered with her at her home. It was something that certainly worried us, but not enough to stop our affair. We were as careful as we could be and fortunately, we were never discovered together at her home.
[64] R1, T33, pp 155-156.
Nothing in the Applicant’s oral evidence was inconsistent with that written evidence, and it was not upset in any way during cross-examination of the Applicant.
Other evidence
The Applicant led evidence from a number of witnesses and a significant number of documents. He submits that the existence of Mr L, the marriage between Ms K and Mr L in June 2006, the birth of the two children during the course of this marriage, and his subsequent death is primarily established in the following evidence.[65]
[65] Applicant’s Closing submissions, pp 2-4.
Ms K
The Tribunal explained the privilege against self-incrimination to Ms K at the commencement of her evidence, including that she could decline to answer questions on the basis that she was being asked to give evidence that might indicate that she had committed a crime in Pakistan.
Ms K’s written evidence contained in Exhibit A17 is that she was born in 1988, making her some three years older than the Applicant’s claimed age. Like the Applicant, she cautions that her date of birth is not strictly reliable. She gives evidence of her early meetings with the Applicant and says that the attraction between them ‘was pure’ and that she thought there would be a future life with him when he was ‘financially ready for marriage’.[66] She said that she and the Applicant were ‘both very emotional’ when they had to stop meeting because of her engagement.
[66] A17 at [14]
Ms K’s evidence in chief covered her early interactions with the Applicant in or around 2006. She gave the Tribunal the impression of being a slightly fiery lady. However, she became weary when she spoke about her father’s proposal that she marry Mr L. She said that she was ‘so sad’ because she loved the Applicant. However, she didn’t tell her parents because it was not the culture to disagree with parents and they never knew that she had loved the Applicant before marrying Mr L. She said that she and the Applicant were both really sad at her engagement and they stopped seeing each other. She said that the marriage to Mr L had been said, and it needed to be done.
Ms K was asked about her relationship with Mr L and said it was not happy; he was not a nice man. She said his conduct was generally ok but, for example, if the cooking wasn’t good he would start an argument or a fight. She was asked if he was violent and she said yes. She was asked for details and said she would prefer not to discuss those problems, it was in the past. She gave evidence he would go away to Iran regularly, sometimes for 10 to 15 days, sometimes for a month, but that his mother was not nice when he was away.
Ms K recalled Mr L’s death, saying he was unwell with a fever and was shaking. He was taken to a clinic and died during the night at the Hospital. His family all came home and visitors came regularly to pay their condolences. She said there was a big ceremony on the 40th day after his death.
Ms K described his family’s decision to return to Afghanistan and said she had told her parents she didn’t want to go with them. Her parents talked to Mr L’s family who said they were taking Ms K’s children (their grandchildren) to Afghanistan with them. Ms K described crying and screaming, and eventually persuading them to leave the children with her and she would move into her parents’ house. She said in her witness statement that she ‘left everything behind that was his… and gave it all back to his parents’.[67] She said that this was because she did not want anything that reminded her of him; it is possible that leaving everything of value with his parents may also have assisted them to reconcile to her keeping the children.
[67] A17, p 4.
To the best of her recollection, Ms K said she thought the Applicant had already been in Australia when Mr L had died. She did not recall speaking with him between the death and his departure. She said she did not have any contact details for him in Australia, not even a telephone number.
Sometime later Ms K said she met the Applicant in the streets of Quetta and he told her he wanted to marry her and said he loved her. She said she would marry him if he promised to treat her children as his own and he agreed.
On cross examination, Ms K was challenged on the preparation of her statement, and said her statement had been prepared with her lawyer and without the Applicant being there.
Ms K’s evidence was firm under pressure; she said she took a risk to have a relationship with the Applicant ‘because we loved each other’. She was asked why she hadn’t attempted to contact the Applicant after Mr L’s death. She said she thought there was no way he would marry her with children and that she had not been thinking about remarrying again.
Ms K’s evidence was detailed, and her delivery of it was persuasive. Her matter-of-fact delivery was punctuated by sudden bouts of strong emotion, and the Tribunal was left with a solid impression of a strong woman who is tired and sad but determined to fight for things that matter to her at any cost.
Importantly, the Tribunal noted a number of interchanges of looks between Ms K and the Applicant that spoke forcefully of them having a committed and loving relationship, notwithstanding their long separation.
Marriage certificate for Ms K and Mr L
The Tribunal has considered the religious marriage certificate of the marriage between
Ms K and Mr L, dated June 2006.[68] The Respondent enquired of the authorities and submits that this certificate is unverified. The Applicant submits, however, that as the marriage was between two Afghans it could not be registered with the Pakistani authorities. There is provision to register a marriage with the Civil Court in Afghanistan or, if outside Afghanistan, at a local diplomatic mission, (i.e. an Embassy or Consulate), however, it appears that the majority of Afghan marriages are not registered.[69][68] R4, ST28.
[69] RSFIC, Annexure B at [52].
The certificate is either a genuine document, or it is a reasonably sophisticated fraud. If it is not genuine it demonstrates a level of sophistication that is not demonstrated elsewhere by the Applicant and Ms K; much of their evidence has been questioned because it does not remotely resemble, or even pretend to resemble, an official document. On balance, the Tribunal finds that the Applicant and Ms K do not have the necessary level of sophistication or connections to manufacture a document so closely resembling an official certificate.
The Tribunal accepts that the marriage certificate of Ms K and Mr L is genuine.
Marriage certificate for Ms K and the Applicant
The Applicant initially relied on the Afghan Court Registry Marriage Certificate.[70] This document was subsequently found to be nongenuine following a referral to the Embassy of Afghanistan.[71] That aspect of the certificate is dealt with further below.
[70] R4, ST25, pp 4-15.
[71] R4 ST27 pp 4-15. 18. R4, ST25, pp 4-15.
The Applicant subsequently produced a Nikah Namah (religious marriage certificate) showing that the Applicant and Ms K were married in January 2012.[72] The name of the marriage registrar on the certificate is Mr W. The Applicant has provided the Tribunal with a statement from Mr W dated 6 June 2022 confirming that he performed the marriage ceremony.[73]
[72] A6; A7
[73] A22
The Applicant’s evidence is that he knew the marriage celebrant by the name Mr F. He says that Mr W and Mr F are ‘one and the same person’,[74] and that he was known to the Applicant, Ms K and their community as Mr F.[75] There is no evidence contradicting that assertion, which appears to have been volunteered willingly by the Applicant and not in response to any particular suspicion of fraud in relation to the different names for the marriage celebrant.
[74] A30 at [9].
[75] A30 at [9].
Mr Q
The written and oral evidence of Mr Q was that he attended the wedding party of Ms K and Mr L at the invitation of his friend, who is also Ms K’s father. He does not claim to have met Ms K at the wedding, but he remembered the names Ms K and Mr L from the wedding invitation card he had received. He also says that around two to three months ago he met Ms K with the Applicant and also spoke to her father, who was in Quetta, by video. He is satisfied that she is the person whose wedding he attended.[76]
[76] R1, T23.
He gave the impression of being an honest and forthright witness, who was genuinely trying to recall true events. He said he had not been fully informed of the reasons why he was being asked to give eye-witness evidence of the marriage of Ms K to Mr L, and that he didn’t know what problems that Applicant was involved in. He said he had been asked to come and tell the truth about things that he had witnessed with his own eyes.
Children’s birth certificates
The children’s birth certificates as issued by the Afghan Consulate General dated
January 2011 do not provide details of their father and are incorrect in the assumption as to their birthplace. The Applicant submits there is no inconsistency in the birth certificates stating the children were born in Quetta and that its birthplace is assumed to be Ghazni Province because the birthplace on a person’s Taskera was, by custom, recorded as that person’s ancestral village, district, or province, rather than the actual place of birth.[77]
[77] R2, ST1, pp 62-63.
Death certificates for Mr L
There are two death certificates evidenced for Mr L. The document initially described as the 2012 Death Certificate is dated February 2012 and discussed at [11]-[14] above.[78] Ms K’s evidence is that she paid five rupees to obtain this document in 2012. It appears to be a form used to keep records of patients in the Hospital which has been used to confirm the circumstances of death, including notes of his final treatment prior to death.
[78] R1, ST1, p 80; R1, ST3, p 169.
The Department requested a death certificate from Pakistan Union Council which was not produced.[79] Ms K’s evidence has not been displaced by the Respondent’s evidence.
[79] See [11]-[13] above.
The Tribunal accepts that the format of the death certificate is a prescription letter issued from the Hospital, which has been amended to record the death of the patient.[80] The information from the Hospital, however, appears to be that it is only a bogus document to the extent that it is held out as a death certificate – there is no challenge to it being a legitimate hospital form used by the Hospital.[81]
[80] R4, ST23, p 2.
[81] R4, ST23, p 2.
Whilst unusual by Australian standards, there is some evidence of death certificates being provided in this format in Pakistan; the Applicant’s mother’s death certificate is written on a Hospital form headed ‘History/Progress Sheet’.[82]
[82] A28.
The Tribunal notes the further information tendered by the Respondent indicating that there is no record of ‘any deceased by name of [Mr L] being admitted to the hospital on [date redacted]’.[83] The Tribunal accepts that this is information that the Respondent received from an agent in Pakistan. However, there is no evidence before the Tribunal about the hospital’s record keeping system, how reliable it is, how it operates in emergency situations, or whether the fact that the patient was an Afghani refugee might mean that his name was not recorded or not accurately recorded. It is not clear whether a patient by that name was admitted around the date, which might have reflected a mis-recording of the date, or a
mis-remembrance of the date rather than supporting the proposition that the event did not happen.
[83] R4, ST24, p 3.
A further death certificate has subsequently been provided dated October 2022, issued out of the Casualty Department of the Hospital, and signed by Dr G.[84] It confirmed that Mr L died in the Casualty Department of the Hospital at 11pm with the cause of death given as ‘Food Poisoning’.[85] The second death certificate therefore substantially confirms the first death certificate 20 February 2012. There is evidence that the Respondent’s investigators have confirmed, by phone, that they were satisfied that the Death Certificate had been verified as genuine by reference to a Verification Certificate also signed by Dr G and dated April 2023.[86]
[84] A9, p 3.
[85] A9, p 3.
[86] R6, Annexure D.
Burial Certificate
The Applicant has tendered a burial certificate dated 10 February 2012 from Mr F certifying that he participated in the burial of Mr L in February 2011.[87] By a further statement dated 26 May 2022 he confirmed his initial certificate.[88]
[87] A8.
[88] A22.
Mr H
Mr H is the Applicant’s brother-in-law. His written statement was very detailed[89] and he spoke to it at the hearing, confirming he had read it carefully and agreed with the content. It deviated from his wife’s evidence in an authentic manner. For example, he refers to
Ms R’s belief that the Applicant should not marry a widow with two children but explains why he did not share this concern; from his time in Australia and his own experience in being allowed to choose Ms R for a wife he had formed the view that the Applicant was entitled to choose his own wife unfettered by old ideas.
[89] A14.
His written and oral evidence was to the effect that the Applicant and Ms K could not have been married or a in a de facto relationship, particularly with children being born, without the family knowing. His witness statement includes the following extract:[90]
22. When I first heard after the DNA test that [the Applicant] was actually the biological father of the [sic] [Ms K’s] children, I thought initially it was a joke, I couldn’t come to terms to understand it. When I realised, it wasn’t any sort of joke and that he actually was the father of the children and had a long running affair with [Ms K] whilst she was married to her first husband, I was both upset and angry with both [Ms K] and [the Applicant], as I strongly disapprove of that behaviour.
23. However whilst I find their behaviour both wrong and surprising, there is a difference between what is unlikely and what is impossible. It is not possible for [the Applicant] to have been married to [Ms K] before he returned from Australia and married her in 2012. If they had been married had 2 children…[Ms K] would have been living with [the Applicant] in the [redacted] Family Home, or they would have been living elsewhere. It would be impossible for [Ms K] particularly with 2 children to live on her own, or with her parents, whilst [the Applicant] lived in the [redacted] Family Home, the family members and the Hazara Community as a whole simply would not allow it.
[90] A14.
Mr H was cross examined and confirmed that the Applicant had told him the results of the DNA test, and he understood why he was giving evidence. He also confirmed he had left Afghanistan in 2001 and had been living in Australia since then.
Ms R
Ms R is the Applicant’s older sister. Her evidence was that she had first met Ms K in 2014, although she was informed of the Applicant’s marriage to her in 2012. Her witness statement is to the effect that she told her husband, Mr H, the result of the DNA test, but from her oral evidence it was clear that Mr H had been the one to tell her.[91] She otherwise said that she had left Pakistan in 2007 when the Applicant was ‘very young’.
[91] A15, p 6.
Ms R said she was confident that the Applicant is not older than they have claimed because of where his birth fits in her own, very detailed, life story.[92] She gave firm evidence that she was already married when the Applicant was born, and that her marriage occurred in 1990.[93]
[92] A15, pp 3-4.
[93] A15.
Ms R’s written evidence is that the Applicant had lived in the same house sharing a room with her own children from 2004 to shortly after her visa was granted in 2007. She says that the Applicant was a teenage boy in 2007, and that he mostly didn’t work but worked occasionally for ‘a pittance’.[94] She confirmed the Applicant’s evidence that he was not in a financial position to marry before coming to Australia in 2011, and that he was living on money that she sent to him.[95] She says that she returned to Pakistan to the house that the Applicant was living in and stayed there from late 2010 to February 2011.[96] She says that there is no way she would not have known about it if the Applicant had a wife and children at that stage, and he did not.
[94] A15 at [25].
[95] A15 at [24] – [25].
[96] A15 at [24].
Ms R says that, after the death of her mother in 2008, she made enquiries about ways her younger siblings (including the Applicant) could come to her in Australia and discovered that they were eligible for Orphan visas, which they subsequently applied for.[97]
[97] A15 at [18].
Ms R says that the Applicant did not mention Ms K in 2011 when he arrived in Australia, and that when he announced his intention to go home in 2012 he said he was homesick. She says she learned the Applicant proposed to marry a widow with two children from
Mr H’s mother and she was opposed to the idea because she thought he should marry a ‘single girl’.[98] She advised him against the marriage and called him several times. When it became apparent that he was determined to marry Ms K she ultimately gave her blessing. However, when she learned of the secret relationship after the DNA results in 2015, she was upset and ceased talking to the Applicant and Ms K for a period of two to three months before she forgave them.[99]
[98] A15 at [33].
[99] A15 at [37].
Ms R’s evidence is extremely detailed. Her oral evidence was confident, and although it deviated slightly from her written evidence it was no more than might be accounted for in interpretation or translation differences.
Mr J
The written and oral evidence of the Applicant’s brother Mr J was that he had shared the same room with his mother, younger sister and the Applicant at the family home throughout the period from 2004 to 2011.[100] He said that when he learned of the secret relationship in 2015, he was shocked.[101] He was cross examined but did not deviate from his written evidence substantially.
[100] A18 at [8].
[101] A16.
Evidence of control of young married women in the Hazara community in Pakistan
Each of the witnesses who had lived in Pakistan were cross-examined about the licence afforded to young women in the Hazara community in Pakistan, and each confirmed that single young women would not have much licence to spend time alone in the community or be permitted to be alone with a boy.
The Respondent drew attention to the following evidence in particular in its closing submissions at [16]:
a.[Mr J] said in oral evidence that Hazaratown is a very religious community, and an illicit sexual affair would have been a scandal, risky and illegal. He also agreed that it was not common for a woman to go out on her own and he had never seen a woman on her own in public. He said a woman in Hazaratown would be accompanied by a male relative and even after marriage she would not be left alone.
b. [Ms R] said in oral evidence that Hazaratown was a conservative environment based on the honour of people and family and it was not common for a woman to go out on her own “even to do the shopping”.
c. In her statement dated 16 September 2022, [Ms S] states that she spent the majority of time in the house and did not have the freedom to go anywhere.
d. On the applicant’s own evidence, it was not common for a “girl and boy to stand talking to each other”.
The Tribunal understands it to be an established proposition, that is not disputed by the Applicant, that Hazaratown is a very religious community, that married women are strictly monitored, and that it is both difficult and dangerous for a man to carry out an affair with a woman in Ms K’s situation.
CONSIDERATION
Did the Applicant provide bogus documents?
Afghan Consulate Marriage Certificate
The Afghan Consulate Marriage Certificate dated January 2012 states that the marriage of the Applicant and Ms K was registered at the Afghan Consulate in Quetta in February 2012.[102] By letter dated 8 March 2018 the Afghan Consul General in Quetta confirmed that it was ‘not issued by the consulate general of Islamic republic of Afghanistan, Quetta and is counterfeit’.[103] The Applicant’s consistent evidence is that he obtained it in the normal manner from officials at the Afghan Consulate and had no reason to believe that it was not genuine.[104]
[102] R4, ST25, pp 4-15.
[103] R4, ST27, p 18.
[104] The Applicant has explained in A18 the steps he took to obtain this Certificate and that he paid the normal relatively small fee for it of 1500 Pakistani rupees (about AUD15 at 2012 exchange rates).
The evidence that it is not genuine is very limited. It comprises a single statement to the Department that it had not been issued at the Consulate, without explanation or commentary. As the Applicant submits, officials who were at the Consulate in 2012 might well have reason to disown the document when the Department enquired, and the Consul General (the author of the letter) is unlikely to have had personal knowledge of it. The Afghan consulate in Quetta is known to the Department as unreliable; documents issued by that consulate are typically not relied upon to establish identity.[105]
[105] A3.
In any event, there is no evidence that the Applicant knew or ought to have known that the document was a bogus document when he submitted it.
The Applicant subsequently obtained the 2017 Registration from the Civil Court in Afghanistan, which was then lodged in support of Ms K’s Partner Visa Application.[106]
[106] A5.
The Tribunal is satisfied that the Applicant has not relied upon a bogus document in providing the Afghan Consulate Marriage Certificate to the Respondent or in allowing it to be provided by his sponsored partner.
Death Certificate
The 2012 Death Certificate was held by Ms K and the Applicant to be a death certificate.
The Tribunal does not accept that it is a prescription letter for Mr L, which has been fraudulently altered. The printed part of the documents appears to show it was issued in February 2012, approximately a year after his death. There is nothing in the document that contradicts the proposition it was an easy way for a helpful doctor (who on Ms K’s evidence, as she understood, had treated Mr L on his admission to hospital and his death) to provide details of the treatment that he had received at that time, to record that he had nevertheless died at 11pm and that his body was then handed over to a relative. There is no indication that the document has been otherwise altered.
The Tribunal considers that Ms K’s reference to it as a Certificate or Death Certificate was not unreasonable, especially taking into account the substantial evidence of her illiteracy and her limited life experience. The Applicant’s failure to raise any concern with this document being described as a death certificate is not problematic for the Tribunal; it is consistent with the format of his mother’s death certificate and there is no evidence to suggest that the Applicant would expect a death certificate to be different.
The Tribunal is satisfied that the Applicant has not relied upon a bogus document in providing the 2012 Death Certificate to the Respondent or in allowing it to be provided by his sponsored partner.
Assessment of identity
The Applicant has provided DNA evidence that he is the full biological sibling of his three living siblings, Ms R, Mr J and Ms S,[107] all of whom are long term permanent residents of Australia or citizens.
[107] A12.
Ms R and Mr H have given evidence that they remember the births of the Applicant and his younger siblings, which all occurred after Ms R married Mr H in August 1990. Ms R relied on these events in her siblings’ respective orphan relative applications and there is no evidence that it raised any difficulties for the Department at that time.
Mr J’s evidence was that he grew up with the Applicant, that they shared the same room and saw him virtually every day throughout their life in Pakistan. He has subsequently regularly worked with him in Australia where they had the same long-term employer for seasonal work as part of a contractual team from 2011 to at least 2020 and was highly regarded.[108]
[108] R1, T28, p 129.
The Applicant’s first passport, dated 2008, was issued by the Afghan Consulate in Quetta with details of his birth that have remained consistent throughout his dealing with the Department. His date of birth was self-reported but the passport application pre-dates any obvious benefit to tampering with his age and was accepted by the officer who determined his Orphan Relative Visa Application.[109] The issue of Passports by the Afghan Consulate in Quetta was the accepted practice at the time and this Passport was accepted by the Department of Immigration at the time in support of his Application for an Orphan Relative Visa. The Applicant’s identity has since been officially confirmed by the Afghan Government with the issue of his Taskera dated May 2017, which has been officially translated and verified by the Ministry of Foreign Affairs.[110]
[109] A10.
[110] R1, T33, p 157.
The Applicant submits that records of the Applicant’s birth and early life in Afghanistan and documents such as official school records in either Afghanistan or Pakistan cannot be provided because they do not exist and, as he did not attend any official school, would not be expected to exist. That submission is consistent with CPI 16 and the provision made for refugees who have left their home countries in extremis and spent time in third countries as unlawful non-citizens.
The Tribunal’s findings below at paragraphs [122]-[125] and [146]-[147] are relevant and relied upon in respect of identity.
The Tribunal is satisfied of the Applicant’s identity.
Assessment of character
Grant of orphan visa
The Tribunal accepts the factual matrix comprising the Applicant’s life story, up to the point that Mr L died. To do otherwise would be to continue to stand against what is now a significant and uncontradicted body of evidence for no other reason than that it seems slightly unlikely to a decision maker from a culturally different background to the Applicant.
The Tribunal finds the unintentional evidence of the Applicant particularly persuasive in respect of his life story. In the Applicant’s 2013 Statement he says:[111]
We used to talk each other if any of us were facing any problem and we used to support each other both emotionally and physically and we used to find a resolution. After marriage I have tried to my best of my ability to look after her and her children and I think I have done pretty good job. After I came back to Australia, I called her in every one to two days. And for the financial support I send her $1000 every month.
[111] R2, ST1, p 76.
That passage resonates with the Applicant’s claimed life story as it presently stands; more so than with the claims he was making at the time of his Orphan visa application or the proposition that he had been married to Ms K before leaving for Australia in 2011. It appears he is describing a pre-marital relationship of a longer period than the three weeks between his return to Pakistan and their wedding. As this is directly contrary to the story he pressed at the time, the Tribunal does not think it was deliberately fabricated. As the Respondent submits, it is established on the evidence that pre-marital relationships of intimacy are very rare between men and women in the Hazara community, and if the Applicant and Ms K had been married in the usual manner prior to the birth of her children it is unlikely that the Applicant would be accidentally reminiscing about the pre-marital help and support they had provided to each other.
The Tribunal finds that the Applicant did not obtain the grant of his orphan visa dishonestly. The Tribunal finds that the Applicant was not married or in a de facto relationship at the time of his Orphan visa application. There is no evidence that he was asked whether he had or might have biological children. He did not have dependent children, in any event, or children that were publicly acknowledged to be his.
Past deception
The Tribunal does not accept all aspects of the Applicant’s life story. Importantly, the Tribunal does not trust the Applicant’s account of his motivations and his reasons for making the choices that he has made in respect of his dealings with the Respondent.
The Tribunal does not find the Applicant a credible witness. He is, by his own account, practiced in the art of deception. He lived a lie in close quarters with his immediate family and maintained it over a period of four years. His siblings were completely unaware of his affair with Ms K or that he was the biological father of her children.
That fact alone causes the Tribunal pause with respect to the Applicant’s character.
The first explanation that the Applicant offered for his conduct in this period was in his 2015 Statutory Declaration, in which he said:[112]
We continued our affair till around late 2010/early 2011.During this period I went to Laloi, near Baluchistan for a holiday with friends. When I came back from the holiday I came to know that [Mr L] had expired. It was a big shock to me. [Ms K] move back to her parents' house after that and we could not meet before I came to Australia.
[112] R2, ST6, p 182.
He said further in his 2021 Statement:[113]
I was informed by [Ms K] that [Mr L] had died after I returned from a short camping holiday to a camping area Loralai District. I had been away just 3 or 4 days. I had gone with 2 male friends.
[113] R2, T27, p 118.
The Applicant said further that, a few weeks later, Ms K called him and said she had returned to live with her parents and ‘about the same time’ he was notified his visa to migrate to Australia had been granted.[114] The Applicant’s Orphan visa was granted in March 2011.[115]
[114] R2, T27, p 119.
[115] A1 at [12]; R5 at [4].
The Applicant’s 2021 evidence was that:[116]
25. At this time, marriage was not something that I was contemplating, I was still dependent on my sister [Ms R] and her husband. I was entirely focussed on my new life in Australia. I was excited at the prospect, but I had no idea what it would mean for me. I assumed that our relationship was at an end and that once I left Quetta,
[Ms K] and I would not have any further contact.26.Our previous arrangement during our relationship was that [Ms K] would phone me when it was safe for her to do so. I did not call her or attempt to contact her when I was in Australia, as I considered that our relationship had ended. [Ms K] did not have any contact details for me in Australia and, so far as I know, she did not attempt to contact me.
[116] R1, T27, p 119.
There is no evidence that the Applicant was in a de facto relationship or marriage to Ms K in May 2011, when he departed for Australia. The children born to Ms K in the course of her marriage to Mr L were not recognised as the Applicant’s, and until DNA testing there was no way that the Applicant could have been certain that either or both of them were in reality his child.
Why, then, did the Applicant not disclose the whole story to the Respondent at the earliest opportunity? The Applicant withheld vital information fundamental to the Respondent’s consideration of Ms K’s partner visa application. Why did he withhold facts which could only have enhanced his and Ms K’s claims to meet the requirements of a Partner (Provisional) (Class UF) (subclass 309) visa, in circumstances where it is now established that:
(a)there was no pre-existing de facto or marriage relationship to upset the Orphan visa application; and
(b)the children that are now determined to be biologically those of the Applicant were legally acknowledged to be someone else’s children?
The Applicant’s first explanation for not mentioning the intimacy between himself and Ms K was in his 2015 Statutory Declaration, and was in the following terms:[117]
6.1 did not inform the department about this earlier as no one from our families knew about this affair and I was afraid of any repurcussions (sic) from the families. Moreover I did not want anyone to disrespect [Ms K]. She is my wife now and I love her and respect her very much. I am informing the Dept, now as I think that the children could be mine. Neither [Ms K] nor me are sure of this fact.
[117] R2, ST6, p 182.
Throughout the proceedings before the Tribunal the Applicant’s representatives have pressed that the secret sexual relationship put Ms K ‘at serious risk’.[118] The Applicant’s present position is summarised in the following terms:[119]
The Applicant accepts that the nature and extent of his prior relationship with Ms K was not disclosed. However, there was a very good reason for not disclosing the relationship, namely the risk of serious harm to [Ms K] and himself and even the children, as well as the inevitable embarrassment and shame if the relationship was disclosed. The relationship had been kept entirely secret from everyone and was known only to the [Ms K] (sic) and the Applicant. It was not kept from the DHA in order to deceive, but rather to keep the relationship a secret.[120] (emphasis added)
[118] Applicant’s closing submissions at [57].
[119] A30 at [11]
[120] Applicant’s Response to the Respondents SFIC at [11]
The Tribunal understands the Applicant’s submission to be that he did not mislead the Department to secure a positive outcome. His submission misled the Department to keep an illicit relationship secret from the Hazara community, his family and his friends, which was necessary for two reasons.; ‘risk of serious harm’ and ‘inevitable embarrassment and shame’.
There are a number of observations that the Tribunal makes in response to that proposition.
First, the Applicant says he travelled to Pakistan for the purpose of finding a wife amongst the Hazara community there. In doing so, the Applicant knew, or reasonably ought to have known given his background and experience, that he would have to apply for a Partner visa to bring his wife to Australia with him. The risk that would pose to Ms K was entirely foreseeable and the Applicant assumed it. If he genuinely believed that telling the Department the truth gave rise to an unacceptable serious risk of harm to Ms K and his children he could have elected not to marry her, or not to apply for the Partner visa and accept that she could not join him in Australia. He made a choice that deception would be a safe path to getting what he wanted, which was for Ms K and her children by her first marriage (as he says he then considered them) to be with him in Australia.
Secondly, the Applicant has not adequately explained the change in his behaviour in 2015 when the DNA testing was required by the Department. When the Applicant was confronted by the possibility of incontrovertible truth of his parentage of the children he did disclose the relationship, with the aid of Ms N of Australian Visa Focus, who had previously prepared the Partner visa application form.[121] At that stage Ms K was still in Pakistan. The Applicant was still dependent on interpretation and translation to communicate; his 2015 Statement was prepared with the aid of a Farsi interpreter that Ms N had arranged when the Applicant disclosed the affair.[122] Once he knew he would be caught in a lie, he did accept that it was worth the risk to Ms K and the children to disclose the truth and he did find a means to do it without any harm coming to himself or his family as a result.
[121] R1, T27 at [7].
[122] R1, T27 at [8].
The Tribunal accepts the Applicant’s evidence in his May 2021 Statutory Declaration that he was living in Mt Barker when the Partner visa was submitted and his access to interpreters was limited there.[123] He has a demonstrated ability to use a telephone, however, and there is no evidence that he didn’t have access to emails in Mt Barker. There is no obvious reason why he could not have been forthright with Ms N by telephone and obtained the assistance of a Farsi interpreter at that stage, rather than waiting until 2015 when the DNA test arose. The Tribunal’s conclusion is that the Applicant’s earlier decision to withhold the full story from the Department was motivated, at least in part, by the belief that he could not be caught in the lie, and that the risk to Ms K and the children would not, in fact, have outweighed the need to tell the truth if he had realised earlier that he would be asked for DNA evidence.
[123] R1, T27 at [6].
Thirdly, the Applicant’s deception went beyond mere omission. Mere omission might, without more, have been reasonable in the circumstances. The Applicant’s 2013 Statement stated that he ‘knew [Ms K] before coming to Australia as [they] were living in the same street’.[124] The Applicant has explained the omission of the sexual relationship with Ms K but indicated that he was ‘assisted by a local Hazara’ to write his 2013 Statement, because he spoke very little English and read none at that time.[125] He says that he withheld details of the sexual relationship with Ms K during her marriage to Mr L because ‘if it became known, it would have been (and still would be) highly damaging to [Ms K’s] reputation and quite possibly dangerous as well to use both’.[126] Whilst not ideal, that alone might not have had serious ramifications for the Tribunal’s consideration of the Applicant’s character.
[124] R2, ST1, p 76.
[125] R1, T27 p 115.
[126] R1, T27, p 115.
The Applicant went further than mere omission. The Applicant’s 2013 Statement also asserted that at their first meeting after his return from Australia the Applicant and Ms K ‘greeted each other and had a small conversation between each other, then she told me that her husband has passed away and have [sic] two children and has no support’.[127] That was an outright lie, designed to proactively mislead people who heard it into thinking that the Applicant did not already know that Ms K’s husband had died and she was a widow with two children as of the date of that meeting.
[127] R2, ST1, p 76.
Finally, the Tribunal is not satisfied that the Applicant is now telling the entire truth of the story to the Tribunal. The Applicant’s version of events departs from Ms K’s in a number of respects, and for the reasons that follow, the Tribunal considers Ms K’s evidence more likely to be correct.
The Applicant’s explanation for his conduct depends on very significant changes in his beliefs and feelings over a very tight timeframe of events, not once but multiple times. He says that he never spoke of marriage with Ms K prior to her marriage to Mr L, and never had any expectation that he would be able to marry her. Then he says that he met her by chance and risked ‘very significant harm to reputation and also potential physical injury’ in order to commit adultery with Ms K over a period of at least four years, commencing at the age of about 15 (his age of commencement making it a very significant length of relationship in the overall scheme of his life).[128] Then when Ms K was free of her first marriage and could potentially have married him, he left for Australia because it would no longer be possible to meet her secretly; she was a widow caring for her infant children at her parents’ home. He says that he did so with no intention of returning to marry her, and that (having risked so much to be together for so long) they ‘spoke occasionally by phone, but both considered the relationship to be at an end’.[129] As such, he left her with no means to contact him in Australia and did not attempt to contact her from Australia. Then he says he went back to Pakistan for the purpose of finding a wife, but did not contemplate the woman he had the prolonged secret affair with and whose children might be his. He says he met Ms K by chance rather than purpose, realised suddenly at that time that she was the only woman he wanted to marry, and married her within the month.
[128] A1 at [23].
[129] A1 at [14].
The Tribunal agrees with the prior assessments of decision makers that it is a highly unlikely story. However, the Tribunal has accepted that Ms K was previously married, and that she was not married to the Applicant until 2012. Ms K offers a much more plausible account of her relationship with the Applicant since 2005 which the Tribunal accepts.
Ms K’s evidence is that she and the Applicant fell in love as children and did talk of marriage during that time. She says they were both devastated that she was to marry Mr L and that she was desperately unhappy in her marriage from its commencement. She says she loved the Applicant and was willing to risk her safety to be intimate with him because she loved him. Although not expressly stated, it is clear from her evidence that she loved him enough to not stand in the way of him leaving for Australia when his Orphan visa was granted just at the moment that she was free to marry him. The Tribunal accepts her evidence that she believed he would stay in Australia and not come back for her. The Tribunal does not believe, however, that the Applicant did not fully intend to come back for her. It is evident from the way that they looked at each other during the Tribunal hearing that they still love each other enough to risk serious harm to be together.
In February 2011 the Applicant was approximately 20 years old. Ms K was preoccupied with keeping her children. His Orphan visa was granted whilst his communications with Ms K were even more limited than usual. The Tribunal has no difficulty with the Applicant pressing ahead with coming to Australia on the Orphan visa in the circumstances, nor with him returning to Pakistan to find Ms K when he was settled enough to support a wife.
The Tribunal does, however, have considerable issue with the Applicant’s continued failure to be forthright with the Tribunal about what actually occurred, presumably in the mistaken belief that it will make his situation worse to admit that he left for Australia intending to return and marry Ms K. Such an intention was, at the time, just an idea and one which was dependent on many circumstances beyond the Applicant’s control. It did not, in the Tribunal’s view, rise to a level that would have required it to be declared to the Department as a change in circumstances for the purpose of the Orphan visa.
The Tribunal finds that the Applicant did deliberately mislead the Respondent in respect of Ms K’s partner visa, and further that he has deliberately misled the Respondent and the Tribunal in respect of his Citizenship application and that the circumstances are not such to meaningfully mitigate the impact on an assessment of his character.
Ongoing deception – children and community
The Applicant continues to present to his children and the community at large that he is not the biological father of his children and that his intimate relationship with his wife commenced in 2012. The Tribunal is not persuaded that either the Applicant or Ms K is at present risk of physical harm in Australia if their past affair becomes public knowledge. Australia has an effective police force. They may be at harm if they travel outside Australia to Pakistan or Afghanistan; that is something for them to consider before leaving the safety of Australia.
The Tribunal considers that the Applicant has previously given, and is still giving, priority to his reputation and to his personal attachment to Hazara traditional cultural norms over the need to be frank and forthright in his dealings with Australian authorities. That is a matter that reflects poorly on his character, given his opportunities to demonstrate Australian values.
The Tribunal also gives weight in its assessment of the Applicant’s character to his ongoing deception of his children, who think he is their step-father and that their biological father is dead. The children are entitled to know their biological parentage pursuant to the internationally recognised rights of a child.[130]
[130] Convention on the Rights of the Child, GA Res 44/25, UN Doc A/RES/44/25 (20 November 1989).
Evidence of good character
The Applicant makes the following submission with respect to the balancing exercise before the Tribunal:
…any failures in this regard or mistakes or misinformation in relation to the Ms K’s visa application, including his behaviour in being a party to a secret sexual relationship with [Ms K] during her marriage to [Mr L], is surely mitigated by his conduct since he migrated to Australia, as he has proved to a model member of the Australian community, with a nil criminal record in both Australia and Pakistan as accepted by the Respondent’s Immigration Branch. The Applicant is respected and personally known on a long term basis as a hardworking vineyard worker and being part of a Hazara Afghan contracting team for [redacted]. See Reference letter from [redacted]. A similar reference provided by [redacted] of the United Hazara Assn who confirms that he has known the Applicant for 7 years and that the Applicant is an active and reputable member of the community. See Reference letter dated 5 December 2020 at page 128 of R1 (part of T28). Even more important, the Applicant has proved to be a faithful and loving husband and father to their now 4 children, fully financially supporting them, ongoing phone and video contact and regularly visiting them in Quetta and, after a long drawn out visa application of more than 10 years in total, eventually succeeding earlier this year in the grant of a Partner Visa for [Ms K] and the children, so that they were able to arrive in Australia in March 2024 and the family is now living together in the house purchased by the Applicant for himself and his family.[131]
[131] Applicant’s Closing Submissions at [58]
The Tribunal accepts that the Applicant has worked hard and has the respect of his employers and the local Hazara community.[132] However, his own view appears to be that he only retains that respect because the Hazara community does not know the truth about Ms K and his children.
[132] A1 at [63]
The Tribunal accepts that the Applicant has demonstrated faithfulness to his family, and that he is a good financial provider for them since he has married Ms K. The Tribunal accepts that to provide for her before they were married would not have been culturally appropriate and might have put her at risk of harm from her father whilst she was an unmarried woman in his home. The Tribunal gives that weight in considering the Applicant’s good character.
The Tribunal accepts that the Applicant does not have any criminal or offence record, and there is no proven history of his misleading the Australian authorities outside this matter. However, the Applicant was not forthcoming about his misleading conduct in respect of
Ms K until the DNA test arose. The Tribunal cannot, at this time, rule out the possibility that he is keeping other secrets in the belief that there is no evidence against him.
The Tribunal cannot presently be affirmatively satisfied of the Applicant’s good character in the circumstances.
CONCLUSION
In respect of the current application for citizenship and on the evidence, the Tribunal is not satisfied that the Applicant is a person of good character within the meaning of and as required by the legislation.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated
2 February 2022 to refuse the Applicant’s application for citizenship by conferral, is affirmed.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for the decision herein of Member J Henderson
.......[Sgd].................................................................
Associate:
Dated: 8 October 2024
Date(s) of hearing: 19 June, 20 June and 4 July 2024 Advocate for the Applicant: Henry Christie Solicitors for the Respondent: Ms Daphne Jones-Bolla, Sparke Helmore Lawyers
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